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Netherlands: Proposal to Remove Non-Original Writings from Copyright Protection

(Feb. 28, 2013) On February 11, 2013, the Ministry of Security and Justice of the <?Netherlands gave notice that it has published for Internet consultation a draft legislative proposal on amending the Dutch Copyright Act. The proposal amends the Act so as to protect only writings based on the creator's creative performance. It would abolish the current protection of writings for those works that lack original character or the creator's personal stamp. (Teeven Abolishes Protection of Writings (Feb. 11, 2013), Government of the Netherlands website.)

The proposal calls for amending article 10, paragraph 1, item 1, of the Copyright Act by removing the word “all.” (Internet Consultatie: Wetsvoorstel Afschaffing Geschriftenbescherming [Internet Consultation: Proposal on Abolishing Writings Protection] (for implementation from Feb. 11, 2013-Apr. 11, 2013).) The article currently states: “[f]or the purposes of this Act, literary, scientific or artistic works includes: (1) books, pamphlets, newspapers, periodicals and all other writings.” (Copyright Act 1912 (Netherlands), Institute for Information Law (IViR) website (updated Dec. 15, 2005); see also Auteurswet [Copyright Act] (Sept. 23, 1912, as last amended July 12, 2012, in force on Jan. 1, 2013), OVERHEID.NL.)

The government’s aim in amending the Act is to modernize copyright and “provide space for creativity and innovation,” which is why, in its view, “from now on only creative performances will be protected.” (Teeven Abolishes Protection of Writings, supra.) At present, non-original writings such as telephone directories, user manuals, catalogs, theatre programmes, and timetables can be protected as writings, so that literal copying of information from them is not permitted. According to the Ministry, the protection of non-original writings that do not constitute a creative performance has more to do with competition law than copyright and “is mainly used by printers, publishers or manufacturers as a weapon against profiting from investments made or to keep products outside the Dutch market.” (Id.)

State Secretary for Security and Justice Fred Teveen argues, moreover, that it is unsuitable for such protection to be given under copyright, especially when civil law already offers possibilities for protecting non-original writings. In his view, factual information should “in principle be as accessible and exchangeable as possible.” (Id.) Another argument for abolishing the protection is that it would make the law more transparent, by clarifying the scope of the protection scheme. (Id.)