| Court Decision of 20 March 1998
PRESIDENT OF THE DISTRICT COURT OF THE
HAGUE
(Judge E.J. Numann)
SUMMARY JUDGMENT
In case 98/147:
private limited liability company
KONINKLIJKE VERMANDE B.V.,
established in Lelystad, plaintiff,
attorney: J.C.H. van Manen
contra:
PAVLE BOJKOVSKI
without known domicile in The Netherlands, defendant,
attorney: P.J.M. von Schmidt auf Altenstadt
advocate: D.J.G. Visser;
[...]
1. The facts of this case are as
follows:
a. Since 1985 Vermande
publishes the Verzameling Nederlandse Wetgeving
(Collected Dutch Legislation) ("VNW"). This is a five-volume
edition containing the full texts of a large number of laws and
treaties. Vermande has derived the original legal texts and
amendments from the Staatsblad (Official Journal), the
Staatscourant (Official Gazette), the Official Journal of
the European Communities, the Tractatenblad (official
journal of treaties) and other sources.
Vermande has adapted these
texts by adding marginal notes, summaries, intitulates,
references, footnotes and other editorial informarion. Having
been in the business of publishing legal texts for decades,
Vermande invests substantial time and money in compiling -
Vermande speaks of "consolidating" - the text of a single act
from, sometimes many, Official Journals, Official Gazettes and
other official publications. The same is true for the constant
updating of the texts.
b. Since a number of years
Vermande also publishes a digital version of the Collected Dutch
Legislation (the "VNW-CD"), containing approximately 200 laws
and other regulations. In the late summer of 1996 Vermande has
distributed the VNW-CD (version 1996) gratis with the sale of
the VNW book edition. The VNW-CD was included in the book
edition in plastic shrink wrap.
c. Bojkovski, a student of
international law, has copied from Vermande's CD-Rom
approximately 60 laws and regulations, which he makes available
- since the middle of December 1997 - on a website under the
name of "Legislatio". After being summoned by Vermande,
Bojkovski has deleted, in January 1998, the headwords and
marginal notes which Vermande had added to the legal texts on
the CD-Rom. The address of the Legislatio website is:
http//www.wetten.nu.
[...]
2. Vermande demands, in sum:
a. an injunction against
Bojkovski to cease and desist any further reproduction and/or a
communication to the public of the contents of the VNW-CD and/or
the Collected Dutch Legislation in book form and/or substantial
parts thereof via the Internet or in any other way, subject to a
penalty;
b. to order Bojkovski to
provide Vermande with a specified, written and complete account,
duly agreed by a register accountant, stating how many times
Legislatio has been consulted on the Internet by third parties,
subject to a penalty.
3. Vermande bases its claims on
the facts mentioned under § 1. According to Vermande Bojkovski
infringes its copyrights and rights in "unpersonal writings" by
copying the contents of the VNW-CD and making them available on
the Internet, as well as slavishly reproducing on the Internet the
marginal texts, summaries (of legal articles not included),
intitulates, references and footnotes of legal provisions and
further editorial information.
According to Vermande the
reproduction of the VNW files (even without editorial changes)
must also be considered a wrongful act, in the light of Directive
96/9/EEC of 11 March 1996 (the Database Directive).
Moreover, according to Vermande,
Bojkovski has infringed the general conditions of sale and
delivery, and the general conditions of use of Vermande's
databases, and thereby committed default against Vermande.
[...]
Application of the Database
Directive
9. On 11 March 1996 the European
Directive 96/9/EC on the legal protection of databases (O.J.
L77/20; hereinafter: the Directive) was adopted. Member States
were to implement the Directive by 1 January 1998. However, the
Dutch legislature has not met this deadline. Supposedly, one of
the two draft bills produced by the parties at the oral hearing of
the case has been adopted by the Dutch Council of Ministers and
submitted to the Council of State. However, since these two
versions differ in an aspect which is crucial to this case, and it
is not clear which draft bill has passed the Council of Ministers,
the text of the draft bill can play no further role in this
proceeding.
10. Since the Directive should
have been implemented into Dutch legislation, the national court
has a duty to interpret existing national law in conformity with
the Directive as much as possible. However, such interpretation
will find its limits in requirements of legal security of the
citizens to which the Directive, by its very nature, does not
address itself. This implies that, in the first place, the
question must be answered whether Vermande would have enjoyed
protection under the Directive if it were timely transposed into
Dutch law.
11. Bojkovski does not deny that
the VNW-CD is a database within the meaning of article 1 of the
Directive. However, Bojkovski maintains that a database of
legislative texts - texts that are not protected by copyright
pursuant to article 11 of the Dutch Copyright Act - falls outside
the scope of the sui generis right of the Directive by virtue of
article 13 of the Directive, which reads as follows:
"This Directive shall be without
prejudice to provisions concerning in particular [...] access to
public documents [...]."
Bojkovski also invokes Recital 52
of the Directive:
"Whereas those Member States
which have specific rules providing for a right comparable to the
sui generis right provide for in this Directive should be
permitted to retain, as far as the new right is concerned, the
exceptions traditionally specified by such rules."
Since this is only one of the
considerations which have led to the adoption of the Directive,
and which are not part of the provisions of the Directive, it does
not empower the national legislature to create exceptions to the
Directive's regime, leaving aside that in the Court's opinion
Bojkovski's argument that the protection of "non-original
writings" is to be considered a right related to the database
right provided by the Directive, and that therefore the existing
traditional exception of article 11 of the Dutch Copyright Act may
be maintained under the Directive's regime, does not appear to be
correct.
12. Should article 11 of the
Dutch Copyright be considered a legal provision concerning the
"access to public documents"? Parliamentary history of (the
precursor of) article 11 teaches us that exempting (inter alia)
laws from copyright protection is founded on the desire to prevent
the State from exercising copyrights in respect of such texts, and
to promote everyone's freedom to disseminate these texts. However,
we must realise that the legislative activity in those days (1877,
1912) was not yet such that most laws could not be found in a
single edition of the Official Journal, and that reproduction,
storage and retrieval techniques were by no means comparable to
the possibilities that are available to us today. Moreover,
parties (correctly) agree that article 11 of the Dutch Copyright
Act does not prevent a collection of laws from enjoying protection
as a copyright work, if it is the result of a selection
manifesting the author's personal vision (which, admittedly, is
not the case).
13. Against this background the
Court provisionally opines that article 11 of the Dutch Copyright
Act is not a provision concerning the access to public
documents within the meaning of article 13 of the Directive.
Admittedly, the explanatory
memorandum to one of the versions of the draft bill produced at
the oral hearing, which contains a provision (article 8 § 1)
exempting databases of laws e.a. from the database right, refers
to article 13 of the Directive, but no further arguments are
given.
[...]
However, it is unclear why a
private producer of a database of laws should not enjoy ordinary
database protection, whereas the production of such a database
requires substantial investments that have become necessary
because Government restricts itself to publishing official
journals and similar publications containing legislative
amendments without (except in special cases) making available
consolidated texts of the laws in force. Whether or not the texts
collected in those databases are exempted from copyright (pursuant
to article 11 of the Dutch Copyright Act), is irrelevant for the
application of the Directive.
The decision of the Dutch Supreme
Court (Hoge Raad) in the case of the State v. Den Ouden (Hoge Raad
20 November 1987, Nederlandse Jurisprudentie 1988, 311)
does not provide an argument for maintaining that article 11 of
the Dutch Copyright Act (or its analogy) guarantees free access to
(inter alia) legal texts. In the first place, that case concerned
the reproduction of a recent legal text that had appeared in a
single issue of the Official Journal (therefore the need to
compile or to consolidate played no role). In the second place, it
was the State itself (in its capacity of the former State Printing
and Publishing company) that protested against the reproduction of
its product, an action which the legislature had precisely
attempted to prevent by way of article 11 of the Dutch Copyright
Act.
14. The Court, therefore,
provisionally opines that the Directive does not leave the
legislature any freedom to categorically exempt databases of laws
from the sui generis right, and thereby declare free for the
taking the fruits of the labour which, in its place, has been
invested over the years by private enterpreneurs. The circumstance
that none of the (draft) implementation bills of other Member
States which were produced by Vermande at the oral hearing
provides for an exemption for databases of laws, reinforces the
Court's doubts as to the possibility of the exemption argued by
Bojkovski.
Interpretation in conformity with
the Directive? Wrongful act?
15. This still leaves undecided
the question raised in this procedure by Vermande. The Directive
has not yet been implemented in the Netherlands and imposes only
obligations on the State, without binding the citizens directly.
However, Vermande has argued that the deadline for implementation
of the Directive has been surpassed and that the Court, therefore,
must interpret national law, at the very least since 1 January
1998, as much as possible in conformity with the Directive. In the
pending case this implies that in Vermande's opinion the acts of
Bojkovski must be considered wrongful under unwritten law.
[...]
17. [...]
Vermande's argument must be
rejected. Until today, pursuant to article 11 of the Dutch
Copyright Act, a right as provided by the Directive never existed
in respect of collections of laws without a personal character;
therefore, the Directive's regime is a breach with the past.
Application of the law as proposed by Vermande would result in the
Directive, indirectly, imposing obligations on a private citizen
such as Bojkovski, which would contravene the principle of legal
security.
18. The Court fails to see why
article 10 § 2 of the TRIPs Agreement would support the argument
presented by Vermande. Judging from its wording, this provision
relates only to databases which by the selection or arrangement of
its contents contitute an intellectual creation, in other words:
to databases which are copyright protected. In respect of
Vermande's collection this is, admittedly, not the case.
Default?
19. Finally, Vermande has argued
that Bojkovski, by copying the VNW-CD, has acted contrary to the
term, which was visible to Bojkovski when the sale of the CD-Rom
took place,
"Unauthorised downloading or
other kinds of copying prohibited",
which as a general condition of
sale was part of the license to use the VNW-CD; thereby, in doing
so, Bojkovski committed default.
20. Even if one were to accept
that by the sale of the VNW book series to Bojkovski, including
the gratis VNW-CD, a contractual relationship was established
between Vermande and Bojkovski of which the quoted term is an
element, this does not, in the provisional opinion of the Court,
imply that Bojkovski has infringed that term. It may be considered
a fact of general knowledge that producers of data carriers or
sound recordings regularly include statements of this nature on
their products (as producers of phonograms have done in the past),
and that the restrictions contained therein are usually broader,
sometimes much broader, than the law provides. Therefore, there is
no need for a consumer to interpret these statements as anything
else than mere warnings of the existence of statutory restrictions
of use. Bojkovski was free to interpret the statement in such a
way that "unauthorised" meant nothing else than: unauthorised by
law. Leaving aside the non-implemented Directive, Bojkovski has
not infringed any statutory provisions.
Conclusion
21. All this leads to the
conclusion that the provisional measures requested will be denied.
[...]
|
