27 december 2018
Artikel

Copyright litigation in The Netherlands: overview

Sources of law

1. What are the principal sources of law and regulation relating to copyright and copyright litigation?

The main sources of legislation are the:

  • Copyright Act
  • Neighbouring Rights Act.

These are supplemented by Dutch case law (see Question 5). The two acts are based on the following international treaties:

  • WIPO Berne Convention for the Protection of Literary and Artistic Works 1971 (Berne Convention).
  • UN Universal Copyright Convention 1952.
  • WTO Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS).

The Civil Code and the Code on Civil Proceedings also contain a number of relevant provisions in relation to enforcement, compensation for damages and ancillary claims such as evidential seizure.
Dutch copyright law must reflect the effective EU legislation and judgments of the Court of Justice of the European Union (CJEU) interpreting that legislation. Directive 2001/29/EC on copyright and related rights in the information society (Copyright Directive) is of particular importance, and is mainly based on the WIPO Copyright Treaty 1996. The Berne Convention is only relevant for international situations, which means that Dutch authors cannot directly invoke the provisions of that convention when their work has been created in The Netherlands.

Court system

2. In which courts is copyright enforced?

There are no courts in The Netherlands that are exclusively competent in copyright matters. The competent court of first instance is determined under the general rules. In practice, the courts of first instance of Amsterdam and The Hague have acquired the most IP experience. This is because the visual and written media sectors are mainly based in the Amsterdam district, while The Hague has an IP tradition due to being exclusively competent in patent and in EU trade mark and design cases. The Dutch courts are generally seen as favouring the copyright owner.

3. Who can represent parties before the court?

As in any other case before the courts of first instance, a party must be represented in court by a lawyer who is admitted to the bar. There is no distinction between barristers and solicitors, and it is not necessary to be a recognised specialist in copyright law.

4. What is the language of the proceedings? Is there a choice of language?

Dutch is the mandatory language in court proceedings. In principle it is not necessary to submit translations of exhibits if they are in English, German or French, unless the judge finds it necessary that translations are submitted. For other languages, a translation is required. 

5. To what extent are courts willing to consider, or are bound by, the decisions or opinions of other national or foreign courts, or other national or international bodies, that have handed down decisions in similar cases?

Although judges are only bound by written law, they tend to follow their colleagues in similar cases. They generally follow decisions of the Supreme Court, because otherwise they run the risk of their decision being quashed on appeal. Decisions of the CJEU are very important because they are decisive on the interpretation of applicable EU legislation. Dutch courts are reluctant to follow the decisions of foreign courts such as those in the UK or US.

Substantive law

6. What types of works can be protected by copyright?

The Dutch Copyright Act contains an open list of copyrightable work (Article 10), which includes any work of literature, science or art. This is to allow the law to adapt to new technical developments without the need to amend the legislation. The work must be expressed and have its "own original character which bears the personal stamp of the author" (Van Dale v Romme, Supreme Court, 4 January 1991). The work must originate from at least some (basic) level of creativity (Erven Endstra, Supreme Court, 30 May 2008). Product designs and software also fall under this definition. A perfume can also be a work (Lancôme/Kecofa, Supreme Court, 16 June 2006). Recently the court of The Hague ruled that a certain type of cheese taste was not recognised as a work, but left undecided whether taste in itself could be a work by analogy with the Kecofa decision. A request for a preliminary ruling, concerning the possibility of copyright on flavours lies before the CJEU and is currently still awaiting the judgment. Advocate General Wathelet rejected the notion of copyright on flavours in his opinion under paragraph 63. In his view, flavours can be "original expressions", but works need to be "sufficiently accurately and objectively identifiable" (Opinion of Advocate General M. Wathelet, Levola Hengelo/Smilde Foods, 25 July 2018, C-310/17).

There is also a pre-existing right to forbid the exact copying of non-original documents. This was deleted from the Copyright Act as of 1 January 2015. This can overlap with database rights, where the value of documents with no level of creativity lies in the assembly of data in which a substantial investment is made. The Dutch Database Act originates from Directive 96/9/EC on the legal protection of databases (Database Directive).

Works of applied art and industrial designs are copyrightable. Protection under the Benelux IP Treaty, Regulation (EC) No 6/2002 on Community designs and under the Copyright Act is simultaneously available.

Although film productions and computer programs are fully protected under the Copyright Act, they each have a special regime as a result of implementations from different international sources. The copyright regime for film production (Articles 45a-45g, Copyright Act) includes an amendment of the Copyright Act according to Article 14bis of the Berne Convention. The copyright regime for computer programs (Articles 45h-45n, Copyright Act) includes implementation of Directive 2009/24/EC on the legal protection of computer programs. Performances, phonograms and broadcasts are protected under the Neighbouring Rights Act.

A work can have joint owners. Co-ownership can cause complexities, as permission from the co-owner(s) is necessary to exploit the work. Unless agreed otherwise, each co-owner can enforce the copyright. Each co-owner must bear the moral rights of the other co-owners in mind.

7. What are the main acts that constitute primary and secondary infringement of copyright?

Copyright gives the right holder the exclusive right to publish (divulge) the work and to reproduce it, subject to statutory limitations. It extends to the whole or a part of the work. The Copyright Act gives extensive, non-exhaustive examples of the exclusive right of the right holder to:

  • Distribute copies.
  • Rent or lend the work.
  • Recite, perform or present the work in public.
  • Broadcast the work and to transmit it via satellite or cable.

Any adaptation of the work requires the consent of the author, which includes translations into another language or the making of a film.

Copyright extends to a secondary exploitation. For instance, a radio station must obtain permission from the author of a work to broadcast it. If that same broadcast is played in a bar or in a restaurant, the establishment owner needs permission (Caféradio, Supreme Court, 6 May 1938). Uploading a work to the internet qualifies both as a copy of the work and as a (secondary) communication to the public, and therefore falls within the scope of protection. Recently, the CJEU ruled that a link to a work that had been made public without the authorisation of the copyright owner constituted a communication to the public where the creator of the hyperlink knew or had to know of the illegal character of the publication. Such knowledge is presumed where the publication of the hyperlink is for a commercial purpose (CJEU, GS Media/ Sanoma, 8 September 2016, C-160/15). Recent European case law has revealed secondary exploitation to be a hot topic. For example, the CJEU considered the sale of a multimedia player (on which there are pre-installed add-ons, available on the internet, containing hyperlinks to websites that are freely accessible to the public, on which copyright-protected works have been made available to the public without the consent of the copyright owners) to be a "communication to the public". Also, the streaming of the illegal content was considered an unlawful reproduction (CJEU 26 April 2017, C-527/15, ECLI:EU:C:2017:300, (Brein/Wullems).

The CJEU also considered the offering of torrents by The Pirate Bay to also be an unlawful communication to the public (CJEU 14 June 2017, C-610,15, ECLI:EU:C:2017:456, (Brein/Ziggo & XS4ALL). In the case of Reha Training (CJEU 7 July 2016, C-494/15 ECLI:EU:C:2016:528), the CJEU established some criteria for the assessment of whether there is a communication to the public. Recently, the CJEU also considered that the concept of "communication to the public" must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright owner, on another website, since it is a new medium to a new public.

Adaptations and copies of works where copyright is exhausted can lead to a form of exploitation covered by the exclusive right. In the Poortvliet case (Supreme Court, 19 January 1979), an individual had bought a number of calendars containing reprints of drawings of by the artist Poortvliet (that is, copies in which the copyright was exhausted). He then made clippings of the calendars, pasted these onto chipboard and sold the chipboards. The Supreme Court held that this was a new form of exploitation that the copyright holder was able to reserve. The same follows from the more recent CJEU decision in Allposter/Pictoright. In this case, the distribution right of Article 4 of the Copyright Directive also extends to physical copies of which the form has been altered. A transfer of a copyrighted image from a paper poster to a canvas (canvas transfer), falls under the distribution right of the holder (Article 4, paragraph 1, Copyright Directive). A change to the medium on which the work is displayed does not lead to exhaustion in the sense of Article 4 paragraph 2 Copyright Directive (CJEU 22 January 2015, C-419/13, ECLI:EU:C:2015:27 (Allposters/Pictoright)). Recently, the CJEU has ruled that the owner of licensed software with an unlimited user licence can resell the software with that licence. However, this does not extend to the reselling of a backup copy (CJEU, 12 October 2016, C-166/150 Rans and Vaselivics). Whether the resale of an e-book is allowed is subject to a request for a preliminary ruling lodged on 16 April 2018 (CJEU Nederlandse Uitgeversbond/Tom Kabinet, C-263/18)).

8. Does your jurisdiction provide authors with moral rights?

Article 25 of the Copyright Act sets out an authors' moral rights in an open summary. The author of a work has the right to:

  • Be indicated as the author, unless this is unreasonable.
  • Oppose any publication of the work under a name other than their own.
  • Oppose any alteration in the name of the work.
  • Oppose any alteration of the work, unless this is unreasonable.
  • Oppose any distortion, mutilation or other impairment that could be prejudicial to the name or reputation of the author or to their dignity.

Assignment of the copyright does not include assignment of moral rights. The right to oppose distortion, mutilation or other impairment of the work cannot be waived by the right holder. Destruction of a work does not qualify as distortion, mutilation or other impairment. However, destruction of a work by the owner can under some circumstances be an abuse of rights making the destructor liable for damages (Jelles v Gem. Zwolle, Supreme Court, 6 February 2004). 

The neighbouring rights of a performing artist are largely the same as those of an author (Article 2, Neighbouring Rights Act). Only performing artists have moral rights, which are almost identical to those of authors.

9. What defences are available to an alleged infringer? 

The most far-reaching defences are that:

  • The work is not protected by copyright (that is, it does not meet the originality threshold).
  • The claimant is not the copyright holder (either because they are not the author or because they have not acquired the copyright). The Copyright Act favours the claimant if the work bears an indication that identifies them as the author, or where in other communications to the public they are named as the author. In such cases, that person is deemed to be the author unless proven to the contrary (Article 4, Copyright Act).
  • The copyright has been exhausted. Under EU law, the further distribution of a product that has been brought into circulation within the EEA (European Economic Area) by the right holder or with its consent, cannot be enjoined.

The most common defence is that the disputed work cannot be considered as a copy of the protected work (Article 13, Copyright Act). The claimant must show that the work bears sufficient elements of the copyright-protected work, and that these elements are themselves copyrightable. Two works may look alike, but this does not necessarily constitute an infringement (Van Gelder v Van Rijn, Supreme Court, 28 June 1946).

For an infringement to exist, the work in question must be copied from the original. If a similar work is made independently of the original work, there is no infringement. As it is difficult for the right holder to prove that the work in question was copied, the Supreme Court has shifted the burden of proof. If the claimant has proved that its work qualifies as a copyrightable work and the work in question shows a strong resemblance to that work, the courts may assume copying, unless the defendant proves to the contrary (Barbie, Supreme Court, 21 February 1992).

Other defences lie in the statutory limitations of copyright. The Copyright Act sets out a closed set of several limitations, mainly based on the Copyright Directive. The limitations include:

  • Copying current affairs items from journalistic media by other journalistic media (Article 15, Copyright Act).
  • Quoting from copyright protected works (Article 15a, Copyright Act).
  • Making a parody of a work (Article 18b, Copyright Act).

All the limitations meet the Berne Convention three-step test.

The Dutch copyright system does not allow for a fair use defence as this is considered to be contrary to the Copyright Directive. Instead, the legislator chose to incorporate into Dutch law as many limitations as the Copyright Directive allows for.

10. Is there a requirement for copyright registration?

Copyright notice

Copyright under Dutch law exists from the creation of the work without further requirements. Any formality requirement, such as a copyright notice, would be a violation of Article 5, paragraph 2 of the Berne Convention. However, a notice is often used in publication in Berne Convention countries to warn third parties that copying without consent will be considered an infringement of copyright in the work.

Where two works strongly resemble each other, it may be necessary to prove which work is the oldest. There are several means of doing so, for example:

  • Recording with a notary public.
  • Recording with I-Depot within the Benelux Office of Intellectual Property in The Hague.
  • Getting a stamp on the document by the nearest Fiscal Office
  • Registration with CC Proof (www.ccproof.nl).

Consequences for failing to register copyright or to display a copyright notice

There is no requirement for registration or obligation to display a copyright notice. 

11. How long does copyright protection last for the principal types of copyright work?

Copyright expires 70 years after 1 January of the year following the death of the author, or, in case of co-authorship, following the death of the longest living author (Article 37, Copyright Act). If it is unknown or unclear who the author is, the copyright expires 70 years after 1 January of the year following the year in which the work was first lawfully communicated to the public. If the identity of the author becomes known within this period of 70 years, the period starts running after their death (Article 38, paragraph 1, Copyright Act).

If the author is a legal entity and no natural person is mentioned as the actual creator in or on copies of the work, the copyright expires 70 years after 1 January of the year following the year in which the work was first lawfully communicated to the public (Article 38, paragraph 2, Copyright Act).

If these rules do not apply, copyright expires if the work has not been lawfully communicated to the public within 70 years after it was created (Article 39, Copyright Act).

The duration of copyright for a cinematographic work is connected to the death of the longest living of the (Article 40)

  • Principal director.
  • Screenplay writer.
  • Writer of the dialogue.
  • Music composer.

No copyright can be enforced if the copyright has expired in the country of origin of the work. This rule does not apply to an author who is a citizen of an EU member state (Article 42, Copyright Act).

Moral rights expire on the death of the author, unless the author has appointed someone by way of last will, testament or codicil to protect its moral rights. If so, the moral rights expire on expiration of the copyright (Article 25, paragraph 2, Copyright Act).

Neighbouring rights expire 50 years after 1 January of the year following the first performance, or, if the performance has been recorded, after the first lawful publication or broadcast of the recording. The same applies to phonograms, where the neighbouring rights expire 50 years after 1 January of the year following the first lawful publication, or, if not published, after the first communication to the public by other means (Article 12, Neighbouring Rights Act).

Because every new edition of a first recording (such as the original recording on vinyl or CD) of a phonogram qualifies as a new phonogram, the rights of a phonogram producer to one performance can last considerably longer than 50 years (the rights to the first recording can expire, but the rights to the new edition might not).

The rights of a broadcasting company expire 50 years after 1 January of the year following the first broadcasting of a programme. The rights of film producers to the first recording of a film production expire 50 years after 1 January of the year following the first recording, or, if the first recording has been lawfully distributed or otherwise made available to the public, 50 years after 1 January of the year following that.

12. How is copyright infringement assessed?

The act of deriving from the original work constitutes infringement under the Copyright Act. The copyright holder must prove that sufficient copyrightable elements of the work are incorporated into the disputed work. Even if only a part of the disputed work has been derived from the protected work, that can constitute an infringement where that part is a work in itself meets originality threshold (Infopaq v Danske Dagblades Forening, CJEU 16 July, C-5/08). The comparison of the overall impression includes unprotected style elements, as far as those elements in the alleged infringing product satisfy the copyright protection criterion (Stokke v H3 Products, Supreme Court, 22 February 2013).

13. On what grounds can copyright in a work be declared invalid or unenforceable?

A work becomes invalid only on the basis of a declaratory judgment of the court holding that it is not a copyrightable work. A copyright is unenforceable if one of the copyright limitations applies. However, the work is only then unenforceable as far as the specific limitation applies. 

14. What limitation periods apply to copyright infringement actions?

The time limit to bring an infringement action for a monetary claim is five years after the day following the day on which the copyright holder became aware of the infringement and of the identity of the infringer, but in any event, within 20 years (Article 310, Book 3, Dutch Civil Code).

An injunctive action formally lapses 20 years after the first infringement (Article 306, Book 3, Dutch Civil Code). However, if a claimant has waited that long, it is very likely the claim would be rejected for lack of interest. A litigation action, but also a cease and desist letter with a damages claim, interrupts the time limitation, and a new term of five years and 20 years then commences (Articles 316, Book 3, Dutch Civil Code).

15. To what extent can the enforcement of copyright expose the copyright holder to liability for an anti-trust violation?

The exercise of copyright in itself does not violate competition rules, particularly where the enforcement of the copyright is in line with EU copyright law. A copyright can establish a dominant position in the relevant market (for instance, software) and under specific circumstances this dominant position can be abused contrary to national and EU competition law. The way in which a copyright holder exploits copyright, for example by excluding competitors by means of price deals, must be considered.

Parties to litigation

16. Who can sue for copyright infringement?

Copyright holder

The copyright holder alone can maintain their right. They can authorise others, such as a licensee, to maintain it in their name or in their own name, but the defendant may ask for evidence of this authorisation. The copyright holder can claim damages in the name of the licensee (Article 27a, paragraph 2, Copyright Act).

A licensee can claim infringing goods and monies that have been obtained through infringement as its property, or for them to be destroyed or rendered useless (Article 28, paragraph 7, Copyright Act). The licensee can seize goods and monies for this purpose. The copyright holder can exclude these rights of the licensee in the licence agreement. Since there is no copyright register, there is neither a requirement nor a possibility to register a licence.

17. Can copyright collecting societies sue for copyright infringement to enforce their members' rights?

It is possible for copyright collecting societies to sue for infringement. This follows from Directive 2014/26/EU on collective management of copyright, which requires member states to allow for the existence of collecting societies. Examples of such societies in The Netherlands are BumaStemra for musicians, and VEV AM for directors of audiovisual works. Under the Directive, once copyright holders have granted the collecting society the right to act on their behalf, they can no longer individually enforce those particular rights. 

18. Under what conditions, if any, can an alleged infringer bring proceedings to obtain a declaratory judgment of non-infringement?

Alleged infringers must show a genuine legal interest to obtain a declaratory judgment of non-infringement, which is the case if the copyright holder has threatened to enforce a copyright against them.

19. Who can be sued for copyright infringement?

Anyone who commits infringing acts can be sued, including the Dutch state. Company directors who merely perform their duty are not personally liable. Such personal liability is very seldom accepted by the courts.

The Copyright Act does not allow for contributory copyright infringement. It can be an act of unfair competition to knowingly assist in committing a copyright infringement (Article 162, Book 6, Dutch Civil Code).

20. How is the liability of intermediaries, such as internet service providers treated? Under what conditions can they be liable for copyright infringement? Are there any specific defences available to them?

Article 6:196c on the liability of ISPs has been added to the Dutch Civil Code, implementing Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-commerce Directive). An ISP can be considered jointly liable with the copyright infringer if it had a part in the infringement. Article 6:196c provides three circumstances in which an ISP cannot be held liable for the actions of the infringer:

  • Mere conduit. Mere conduit is the pure transmission of information, and can be invoked if the ISP did not initiate the transmission, did not select the receiver of the transmission, and did not select or modify the transmission.
  • Caching. This is the temporary storage of information, for which the ISP cannot be held liable if the ISP:
    • has not modified the information;
    • complies with the applicable conditions on access of information;
    • complies with rules regarding the updating of information;
    • does not interfere with the lawful use of technology to obtain data on the use of the information; and
    • acts quickly to remove or disable access to information it has stored when the ISP knows or should know that the original information is deleted.
  • Hosting. Hosting is the mere saving of information and providing it on request.

An ISP cannot be held liable if it either:

  • Does not know the hosted information is infringing copyright.
  • Disables access to the infringing information once it becomes aware or should become aware of it.

Recent case law shows an alteration towards the liability of ISP's for providing access to copyrighted information. In a recent decision, the CJEU ruled that an injunction prohibiting an ISP from transferring data is possible, and is considered an effective, proportionate and dissuasive action (CJEU 14 June 2017, C-610,15, ECLI:EU:C:2017:456, (Brein/Ziggo &XS4ALL), which was later confirmed by the Dutch Supreme Court (Supreme Court, 29 June 2018, ECLI:NL:HR:2018:1046). Furthermore, the CJEU considered that what will apply for ISPs must also apply to intermediaries beyond the digital realm (such as real estate companies, where properties are rented to infringing tenants, such that the real estate companies' rental contracts must state that the sale of illegal goods on the premises is not allowed) (CJEU, 7 July 2016, C-494/15, ECLI:EU:C:2016:528, (Tommy Hilfiger/Delta Center).

In another case, the CJEU ruled that a shop owner that offers an open Wi-Fi-network is not responsible for damages following from copyright infringements by third parties using this network. The shop owner can be seen as an ISP performing mere conduit within the meaning of the Electronic Commerce Directive, even if it is free Wi-Fi. However, the shopkeeper can be ordered to secure its network with a password and can require users to identify themselves prior to obtaining the password (CJEU, MC Fadden/ Sody, September 15, 2016, C-484/14).

21. Is it possible to add or remove parties during litigation?

Under the civil proceedings rules, it is possible to order a party to intervene in the proceedings, for example, the party from whom the allegedly infringing product was purchased. It is also possible for a party to intervene on its own initiative. It is not possible to remove a party from the litigation without the co-operation of the other party.

Enforcement options

22. What options are open to a copyright holder when seeking to enforce its rights in your jurisdiction?

Civil proceedings

A copyright holder has several options to enforce its rights. There are extensive preliminary measures available under EU regulations. A copyright holder can obtain an ex parte order under which the infringing business can be immediately halted. Injunctive relief can be obtained in summary intra partes proceedings as well. In such proceedings, a disclosure order (for example for financial records and information on the origin and destination of the infringing goods) can also be obtained. In addition, a copyright holder can seize infringing goods, monies and evidence. These rights are available to the copyright holder and to a licensee. In the proceedings on the merits, a party can claim all of the above, and also sue for compensation for damages and/or surrender of profits.

Criminal proceedings

Although criminal proceedings are available, it is up to the public attorney to decide whether it acts on a complaint for infringement. The sanctions for intentional infringements are a maximum term of six months' imprisonment or a maximum fine of EUR11,250 (Article 31, Copyright Act). If it is committed as a professional activity, the sanctions are higher, and include a maximum term of four years' imprisonment or a maximum fine of EUR45,000 (Article 31b). Article 32 provides for a culpable offence of infringing distribution (when having reasonable grounds to know of the copyright infringement). The sanction is a maximum fine of EUR4,500. The infringing goods can be declared forfeit (Article 36). Dutch public attorneys are very reluctant to act on a complaint for copyright infringement and generally only co-operate in the case of counterfeit products.

Border measures

Border measures are available for the copyright holder under Regulation (EU) 608/2013 concerning customs enforcement of intellectual property rights. Dutch customs officials are very active in stopping the import of counterfeit products. A party can request the customs authorities to warn the right holder or its attorney of any suspicious imports.

23. Is interim relief available for the rapid removal of infringing content from the internet?

There are no additional special procedures for fast removal of infringing content on the internet besides an ex parte order under Article 1019e of the Dutch Procedural Code.

24. Is it advisable to send a letter before action (cease and desist letter) to an alleged infringer before commencing copyright infringement proceedings?

It is advisable to send a cease and desist letter before commencing proceedings because it prevents the alleged infringer from complaining that it did not get the opportunity to avoid litigation, which can otherwise mean that the court condemns the right holder to pay the costs of the proceedings. However, a party should avoid sending a cease and desist letter if there is serious doubt about the infringement. Threatening an alleged infringer's customers is even more dangerous. A party can be liable for damages if the threatened party obeys the demand to cease and desist and the infringement is not substantiated.

25. To what extent are your national courts able to grant cross-border or extra-territorial injunctions (preliminary or permanent)?

If the alleged infringing actions constitute copyright infringement in other countries and the Dutch court is competent, the court can grant cross-border injunctions, provided that it is likely that the actions are also infringements under the laws of that country. The infringing action must place in The Netherlands for the Dutch courts to have competence, or the defendant must reside in The Netherlands.

26. To what extent are arbitration, and alternative dispute resolution (ADR) methods (such as mediation), available to resolve copyright disputes?

Arbitration

Arbitration is available if both parties agree to it. Arbitration clauses can be included in licence and exploitation agreements.

ADR

ADR methods, such as mediation, are available. ADR is not popular for copyright infringement issues. ADR clauses can be included in licence and exploitation agreements.

Procedure in civil courts

27. What is the format of copyright infringement proceedings?

The proceedings on the merits begin by serving a writ of summons, which is introduced to the court by the claimant's attorney on the chosen date. If the defendant does not appear through an appointed attorney, the court renders a judgment in default within a few weeks. If the defendant appears before that judgment is rendered, the default is cleared, and the defendant can rebut the allegations by issuing a written statement of defence. The claimant reacts to that by written statement and the defendant then submits its statement of rejoinder. A court hearing typically then takes place. If not, the parties may ask the court for a hearing to present their arguments orally. In intellectual property cases this request is normally allowed. Normally, a court hearing follows within a few months of the end of the written proceedings. After the hearing, the court delivers judgment. This can be final judgment or an interlocutory judgment, such as an order to produce evidence. The average duration of these proceedings is up to 16 months. There is no trial by jury in The Netherlands.

28. What are the rules and practice concerning evidence in copyright infringement proceedings in your jurisdiction?

Documents

All relevant documents can be accepted as evidence. The courts are free to attach such weight to the documents as they see fit, unless it is a deed made by a notary public.

Witness evidence

Parties can ask to examine witnesses in a hearing. The opposing party can also examine the witnesses. Witnesses can be cross-examined through the judge as intermediary.

Expert evidence

Experts are mostly appointed by the court to answer its technical questions. Sometimes parties submit their own experts' reports to support or deny the existence of copyright. Experts can be cross-examined through the judge as intermediary.

29. To what extent is survey evidence used?

Survey evidence is not relevant because public opinion is irrelevant to the existence of copyright or its infringement.

30. Is evidence obtained for criminal proceedings admissible in civil proceedings, and vice versa?

Evidence obtained for one set of proceedings is admissible in another. Evidence obtained for criminal proceedings may be stronger than evidence obtained for civil proceedings.

31. Is evidence obtained in civil proceedings admissible in other civil proceedings?

Evidence obtained in civil proceedings can be admitted in other civil proceedings. It is up to the court to attach weight to the evidence.

32. To what extent is pre-trial discovery permitted and what other mechanisms are available for obtaining evidence from an adverse party or third parties?

Pre-trial discovery

A copyright holder can obtain a preliminary disclosure order or leave for copyright attachment on infringing goods and/or financial records. Attachment is executed by a process server, who may be assisted by an expert. Seizure of evidence does not allow the right holder to inspect the seized goods before the proceedings. The court must be separately requested to investigate the seized evidence.

Other mechanisms

It is possible to obtain samples of goods that are suspected to infringe copyrights through customs enforcement. Test purchases through bailiffs or private investigation companies are also available. Investigations companies can also investigate the companies behind the infringing goods and obtain other background information.

33. What level of proof is required for establishing infringement?

Whether a work is copyrightable and whether a copyright is being infringed is a matter of law and not of fact. The court establishes this on its own initiative according to the law. Evidence is only necessary in respect of facts, for example, that the claimant is the right holder and that the defendant is committing an act of infringement and/or intended to do so. The latter two are necessary for obtaining an indemnification.

34. How long do copyright infringement proceedings typically last?

Expediting proceedings

Summary proceedings take on average between one and two months, depending on the date the court appoints for the hearing. Proceedings generally take up to 16 months. It is not possible to influence the speed with which the courts deliver their decision.

Delaying proceedings

The most common method used to delay is non-appearance at the first court date. It is also possible to delay by asking for extensions of time to submit the written statement. Most courts now have rules that a party can get such an extension only with the consent of the other party after two "normal" extensions of six weeks have been given. Another delaying tactic is to ask for leave to order a third party to intervene in the proceedings or to change attorney.

Staying proceedings

Proceedings are not normally stayed, unless by request of both parties, for example for the purpose of settlement negations. At second instance, or in proceedings before the Supreme Court, a stay can be requested to refer the case to the CJEU.

Counteracting delay to proceedings

A party can force a delaying party to submit by threatening to ask the court to declare that the possibility of submitting has been forfeited.

Preliminary relief

35. Is preliminary relief available, and if so what measures are available and under what conditions?

Preliminary relief is available. Urgency is a condition to obtain a preliminary injunction. Urgency is normally assumed, but if the right holder demonstrates an obvious disinterest in defending their right for a considerable amount of time (more than a year) while being aware of the infringement, the court may find that they should seek relief in proceedings on the merits.
Counterclaims, such as a recall, information on amounts purchased and sold, or information on resellers, can only be obtained if an urgent interest in these claims is shown.

36. Can a protective writ be filed at the court at which an ex parte application may be filed against that defendant?

Protective writs can no longer be obtained in copyright cases.

37. What is the format for preliminary injunction proceedings?

General

The claimant must submit a draft of the writ of summons to the court. The court then determines how urgent the matter is, and sets a date for the hearing on that basis. This is usually within a few weeks. Parties can submit evidence during that time. Judgment is given two weeks after the court hearing. An ex parte order is obtained by filing a written request.

Level of proof

The rules of evidence do not count in preliminary injunction proceedings. The court establishes whether the claimant has shown sufficiently there is an urgent interest in a preliminary injunction.

Evidence

All evidence can be used in preliminary injunction proceedings, although in principle summary proceedings do not permit the hearing of witnesses and experts.

Copyright validity

The claimant must show that it can claim the copyright. The invalidity or the lack of ownership of the copyright is a possible defence.

Length of proceedings

Summary proceedings take on average between one and two months, depending on the date the court appoints for the hearing. An ex parte order can be obtained within a day.

38. Where a preliminary injunction is granted, is it necessary to start main proceedings to confirm the preliminary injunction, and if so, what is the deadline?

The court sets a time limit within which main proceedings must be commenced in its judgment (Article 1019i, Dutch Civil Proceedings Code). This is typically within six months of the date of the judgment.

39. What remedies are available in a copyright infringement action?

Permanent injunction

It is possible to obtain a permanent injunction.

Monetary remedies

Monetary remedies are available. The claimant can claim the higher of either a surrender of profits or compensation for damages.

Delivery up or destruction of infringing goods

The delivery up or destruction of infringing goods can be claimed.

Publication of the decision

A court can order publication of the decision, such as online through the website where infringement was made, and state the duration, letter size and so on of the publication or rectification.

Recall order

An order to recall the infringing goods can be claimed.

Declaration of infringement and validity

A declaration of infringement, non-infringement or (in)validity can be claimed in main proceedings.

Others

Rectification, the compensation of legal costs, disclosure of financial records concerning the origin, resellers, and amounts sold and purchased, including prices, can also be claimed. This is used to verify or calculate the profits that are claimed to be surrendered or to use as a basis of the calculation of damages.

40. How are monetary remedies assessed against a copyright infringer?

The claimant can claim the higher of either a surrender of profits or compensation for damages. An accountants' report can be claimed for the calculation of the profits. The compensation for damages is calculated based on the actual damages suffered. It is not possible to claim punitive damages. Since it is difficult to calculate actual damages, case law has created a method for calculating this by analogy with the reasonable licence fee an infringer would have had to pay if it had obtained permission from the copyright owner to use its work. All the circumstances of the case are considered by the court in establishing the amount of damages.

Appeal remedies

41. What routes of appeal are available to the unsuccessful party and what conditions apply?

It is possible to appeal in both summary and in main proceedings. The appeal must be lodged within four weeks after a summary judgment and within three months after a judgment in proceedings on the merits. This term starts running even if the successful party did not serve a copy of the judgment to the unsuccessful party with the court order.

An appeal does not stay a judgment that has immediate effect. This means a party that is prohibited from infringing a copyright must cease and desist its activities until the decision is overturned on appeal.

It is possible to appeal without substantiating objections, which can be done at a later stage. The proceedings in the court of appeal are a full trial and it is possible to introduce new facts and new grounds. Appeal proceedings generally take two years before receiving an appeal decision.

Appeal can be made to the Supreme Court from the appeal court, but only if the law has not been applied correctly or because the judgment cannot be understood.

An allowance by the court or meeting further conditions are not required for an appeal at first or second instance.

Litigation costs

42. What level of cost should a party expect to incur to take a case through to a first instance decision, preliminary injunction proceedings and appeal proceedings?

The level of costs that can be expected would be:

  • First instance decision: EUR15,000 to EUR50,000.
  • Preliminary injunction proceedings: EUR10,000 to EUR30,000.
  • Appeal proceedings: EUR20,000 to EUR75,000.

Costs depend on the amount of written submissions, counterclaims witnesses, expert studies and so on. Under Directive 2004/48/EC on the enforcement of intellectual property rights, the unsuccessful party must compensate the reasonable and fair legal costs of the successful party in respect of the intellectual property aspect of the case. As follows from the decision of the Supreme Court in Brein/Ziggo - XS4 All. This also relates to actions against ISPs (Supreme Court, 29 June 2018, ECLI:NL:HR:2018:1046).

Reform

43. What are the important developing and emerging trends in your country's copyright law?

The Copyright Contract Law was introduced in 2015. It aims to better protect authors of copyright-protected works. It introduced some mandatory requirements in respect of the contracts between authors and the parties exploiting their work, either as licensees or as owners, such as:

  • Reasonable compensation for providing the licence (Article 25c, Copyright Act).
  • The right to terminate the agreement for non-use (Article 25e, Copyright Act).
  • The right to claim an additional compensation in case of a "best-seller" work (Article 25d, Copyright Act).
  • Recent case law in relation to Copyright Contract Law shows that a music publishing agreement for the duration of the copyright is an agreement for an indefinite period of time. Nonetheless, such agreements are, in principle, terminable, in which case the publishing rights must be re-transferred, which follows from reasonableness and fairness. However, such an agreement cannot be terminated outright, as there have been investments made in order to exploit the publishing rights. When considering the non-use rights set out in the Copyright Contact Law, in order for such a termination to take place, there must be a sufficiently compelling ground (although this may differ once the agreement has been in effect for a longer term and investment may be recovered). It will therefore depend on the circumstances of the case as to whether a compelling ground is needed to terminate the agreement (Supreme Court, 7 July 2017, ECLI:NL:HR:2017:1270 (Nananda/Golden Earring).

Most trends in relation to copyright law concern the digital exploitation of copyright works. Therefore, the new EU Digital Single Market (DSM) rules are awaited. The proposals for this involve a DSM Directive and DSM Regulation in relation to the digital and cross-border use of copyright-protected material.


Online resources

boek9.nl

W www.boek9.nl
Description. Updated Dutch website with a listing of national and international laws, treaties, directives and regulations, case law, other relevant developments and commentaries.

Institute for Information Law

W www.ivir.nl
Description. Website of the Institute for Information Law of the University of Amsterdam.


First published by Thomson Reuters.

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