|Bernt Hugenholtz is
Professor of Intellectual Property Law and Director of
the Institute for Information Law of the University of
Amsterdam (IViR). In 1989 he received his doctor’s
degree cum laude from the University of
Amsterdam, where he defended his thesis on copyright
protection of works of facts. He has written numerous
books, studies and articles on a variety of topics
involving copyright, information technology, new media
and the Internet. At the University of Amsterdam he
teaches courses in copyright law, international
copyright law and industrial property law. He was a
member of the Amsterdam Bar and partner of the law firm
Stibbe between 1990 and 1998. Since 2003 he has been a
deputy judge at the Court of Appeal in Arnhem.
Prof. Hugenholtz is a member of the Dutch Copyright
Committee that advises the Minister of Justice of the
Netherlands, and has acted as a consultant to the World
Intellectual Property Organisation (WIPO), the European
Commission, and several national governments. He has
been on international missions representing WIPO in
China and Indonesia, and is a regular speaker at
Prof. Hugenholtz is General Editor of the Information
Law Series,which is published by
Kluwer Law International. Since 2007 he is also a member
of the Faculty of Law of the University of Bergen,
Norway (UiB) http://www.uib.no/en.
Fair Use in Europe,
Communications of the ACM, 2013-5,
Examining the mismatch between copyright law and
technology-influence evolving social norms in the
(with I. Hargreaves)
Copyright Reform for Growth and Jobs: Modernising the
European Copyright Framework, Policy brief,
The Wittem Group's European Copyright Code, in:
Codification of European Copyright Law,
T-E. Synodinou (ed.), Information
Law Series, vol. 29, Alphen aan den Rijn: Kluwer Law
International 2012, p. 339-354.
(with P. Goldstein)
International Copyright. Principles, Law, and Practice,
Third Edition, New York:
Oxford University Press 2012, 616
Story of the Tape Recorder and the History of Copyright
Copyright and the Challenge of the New, B.
Sherman & L. Wiseman (eds.), Information Law Series,
vol. 25, Alphen aan den Rijn: Kluwer Internation 2012,
A Century of Dutch
Copyright Law. Auteurswet 1912-2012,
A.A. Quaedvlieg & D.J.G. Visser (eds.), Amsterdam:
deLex 2012, 554 pp.
Works of Literature, Science and Art,
Government Works, M.M.M. van
Eechoud, p. 141-175.
Works of Literature, Science and Art,
Century of Dutch Copyright Law. Auteurswet 1912-2012,
P.B. Hugenholtz, A.A. Quaedvlieg & D.J.G. Visser (eds.), Amsterdam: Delex 2012, p.
This chapter traces
the development of the Dutch concept of ‘works of
literature, science and art’ from its adoption in
the Act of 1912 (section 3.1) and in subsequent
amendments (section 3.2), through its interpretation
in legal doctrine (section 3.3) to its application
by the courts (section 3.4) and the impact thereon
of European harmonization (section 3.5).
The Dutch case for flexibility, in:
Property and Innovation: A Framework for 21st Century
Growth and Jobs, I. Hargreaves & P. Hofheinz (ed.), The
Lisbon Council, September 2012, p. 53-57.
(with C.A. Jasserand)
Using Copyright to Promote Access to Public Sector
Information: A Comparative Survey, Part III of a study
commissioned by WIPO on Using Copyright to Promote
Access to Information and Creative Content.
This study, which is part
of a three-part report on Using Copyright to Enhance
Access to Information and Creative Content, examines the
role that copyright plays in facilitating access to and
reuse of public sector information. It briefly describes
the laws, national policies and government practices
relating to the reutilization of public sector
information that are currently in place, or being
developed, in seven WIPO Member States: France, Japan,
Mexico, New Zealand, Uganda, United Kingdom and the
Fair use in Europe. In search of flexibilities,
Amsterdam, November 2011.
This study examines
copyright flexibilities from the perspective of EU,
international and national law. Why is there a need for
flexibilities in copyright law today and to what extent
are open norms compatible with the copyright system?
Does the EU and international legal framework leave
Member States discretion to adopt in their national laws
open ‘fair use’ style limitations and exceptions to
copyright? What kinds of flexibility presently exist in
national copyright law?
M.M.M. van Eechoud,
S.J. van Gompel,
L. Guibault &
B. van der Sloot)
Report of the Netherlands for ALAI 2011 Study Days
Digitization of audiovisual materials by heritage institutions: Models for licences and compensations (summary), study commisioned by Images for the Future/Knowledgeland, April 2011.
Chronicle of the Netherlands Dutch copyright law,
2001-2010, RIDA, 2010-226, p. 281-349.
This chronicle will
provide an overview of Dutch copyright law as it has
developed between 2001 and 2010. First, a brief
introduction to the law of copyright in the Netherlands
is presented, outlining the general legal framework.
Then follows a summary of legislative developments most
relevant to copyright, and of forthcoming legislation.
Thereafter the pièce de resistance of this chronicle
comprises a selection of noteworthy court decisions. The
scope of this chronicle is limited to copyright;
neighbouring rights and database right will not be
The European Commission's term extension proposal: fair
concern or fruit of industry lobbying?, panel discussion
at ALAI Study Days 2010, Vienna, 10 September 2010.
Codes of Conduct and Copyright Enforcement in Cyberspace,
in: I.A. Stamatoudi (ed.), Copyright Enforcement and
the Internet, Information Law Series, vol. 21,
Alphen aan den Rijn: Kluwer Law International 2010, p.
This chapter critically
examines the rise of codes of conduct that deal with
copyright enforcement. Its focus will be on codes
binding ISPs and other online intermediaries offering
similar services, such as providers of user-generated
content (UGC) platforms. While solutions in the United
States and elsewhere will occasionally be discussed, its
regional focus will be on the European Union. Following
the Introduction, section II commences by offering a
general typology of self-regulation, including
discussion of the advantages and disadvantages of
self-regulatory approaches and of the legal nature and
normative effect of codes of conduct. Section III
describes statutory law on copyright law, liability and
enforcement, which serves as background law to
self-regulatory copyright enforcement schemes. Section
IV describes and critically assesses actual codes of
conduct dealing with copyright enforcement. Section V
Paul Goldstein) International Copyright.
Principles, Law, and Practice, Second Edition, New
York: Oxford University Press 2010, ISBN 9780199737109,
This book divides into
two parts. Part One (Chapters 1 through 5) describes the
general principles of international copyright and the
structure of the main conventions. Following Chapter 2,
which sets out the historic traditions of copyright,
Chapter 3 describes the substance and structure of the
principal international, regional, and bilateral
conventions in the field of copyright and neighboring
rights. Chapter 4 discusses the principles of
territoriality and national treatment that underlie
these conventions and examines the often highly complex
issues of private international law: jurisdiction
(choice of forum) and conflict of laws (choice of law).
Chapter 5 concludes Part One with a discussion of
so-called "scope" rules in the international conventions
and in national law, which determine the points of
attachment that allow foreign authors to enjoy local
Part Two offers a comparative overview of the
substantive norms of copyright. Guided by the
substantive minima of the main international
conventions, this part describes and compares the rules
on copyright and neigboring rights found in national
laws. Chapter 6 depicts the rules on the subject matter
of copyright and neighboring rights, Chapter 7 the rules
on authorship and ownership. The terms of protection for
copyright and neigboring rights are examined in Chapter
8. Chapter 9 describes the main economic rights
protected under copyright and neighboring rights laws,
while Chapter 10 focuses on moral rights. Chapter 11
considers limitations and exemptions, and Chapter 12
analyses copyright enforcement remedies and sanctions.
More information about
the book, see catalogue of
Oxford University Press.
European Copyright Code, AMI, 2010-4, p.
S.J. van Gompel)
The Orphan Works Problem: The Copyright Conundrum of
Digitizing Large-Scale Audiovisual Archives, and How to
Solve it, Popular Communication - The
International Journal of Media and Culture, 2010-1,
This article examines
the problem of 'orphan works' against the background of
various projects for mass-digitization of audiovisual
content. Orphan works are works for which the copyright
owners cannot be identified or located. The fact that a
particular work is 'orphaned' makes it impossible to
clear the rights and to legally reutilize the work. This
article describes and evaluates six different possible
regulatory solutions to the orphan works problem,
including extended collective licensing and compulsory
licensing. The article concludes that if one wants to
make the vast European audiovisual cultural heritage
available for future usage, regulatory intervention is
SatCab revisited: The past, present and future of the
Satellite and Cable Directive, IRIS Plus 2009-8,
M.M.M. van Eechoud,
S. van Gompel,
L. Guibault and
Harmonizing European Copyright Law: The Challenges of
Better Lawmaking, Information Law Series 19, Alphen
aan den Rijn: Kluwer Law International 2009.
Nobody likes today’s
copyright law. Widespread unauthorized use of copyright material proliferates
with impunity, while citizens and users protest that intrusive copyright
and related rights law stifle cultural expression. Equipment manufacturers
and intermediaries complain about yet more security’ features
that complicate their products and services and encumber marketing, while
content owners desperately want enforcement to work. And of course it is
crucial that whatever regulatory instruments come into play must not age
prematurely in Internet time.
The European Union faces the daunting challenge of articulating coherent
copyright policies that satisfy these contradictory multiple demands. Yet
the legal framework must conform to the European Union’s remit of fostering
economic growth in a common market, while respecting the national traditions
of its still growing family of Member States. Clearly, an extraordinary balancing
act is called for if justice is to be done to all of the private and public
So how has the European acquis communautaire scored on these issues so far?
In this groundbreaking study the Institute for Information Law of the University
of Amsterdam brings its extensive academic expertise to bear on this question.
The authors scrutinize the present law as laid down in the seven copyright
and related rights directives, against the background of the relevant international
standards of the Berne Convention, the TRIPs agreement, and the WIPO Internet
Treaties. They map out in detail the degree to which certain areas of copyright
have been harmonized as they expose the gaps and inconsistencies in the acquis
and the urgent unresolved issues that persist. They identify the EU’s
ambitions in relation to its present and future competences (following the
Lisbon Reform) to regulate copyright, and to its Better Regulation agenda.
Following a comprehensive analysis of almost two decades of regulatory intervention,
they move on to the salient current trends that point toward a more coherent
and balanced European copyright law.
Codes of Conduct: Pragmatism v. Principle, Editorial
published in IIC International Review of
Intellectual property and Competition Law, Vol. 39
(2008), No. 6, p. 635-637.
Helberger, N. Dufft & S.J.
Forever: Why Extending the Term of Protection for Sound
Recordings is a Bad Idea, E.I.P.R., 2008-5,
critically examines the arguments put forward in
favour of a term extension of related rights of
phonogram producers. The authors conclude that there
are no convincing reasons to extend the existing term
of protection. The article also explains why the
popular argument that a term extension would improve
the situation of performers is probably a fallacy.
|(with R.L. Okediji)
an International Instrument on Limitations and
Exceptions to Copyright, Study supported by the Open
Society Institute (OSI), 6 March 2008.
The task of
developing a global approach to limitations and
exceptions is one of the major challenges facing the
international copyright system today. This paper
examines policy options and modalities for framing an
international instrument on limitations and exceptions
to copyright within the treaty obligations of the
current international copyright system. We consider
this international copyright acquis as our
general starting point, and evaluate options for the
design of such an instrument, including questions of
political sustainability and institutional home.
Place Like Home for Making a Copy: Private Copying in
European Copyright Law and Consumer Law, Berkeley
Technology Law Journal, 2007-3, p. 1061-1098.
This article examines
the intersection between copyright law and consumer
law relating to private copying in Europe. In doing
so, we will query the effectiveness of copyright law
and consumer law as legal instruments to protect
consumers in their dealings with information
suppliers. Our goal is to demonstrate that while
copyright law in Europe does offer a measure of
comfort to consumers, the legal instruments of
European consumer law are potentially more effective
in achieving the freedom to make private copies that
European consumers generally expect.
Guibault, G. Westkamp, T. Rieber-Mohn, et al.)
on the Implementation and Effect in Member States' laws
of Directive 2001/29/EC on the Harmonisation of Certain
Aspects of Copyright and Related Rights in the
Information Society, report to the European
Commission, DG Internal Market, February 2007.
commissioned by the European Commission, examines the
application of Directive 2001/29/EC in the light of
the development of the digital market. Its purpose is
to consider how Member States have implemented the
Directive into national law and to assist the
Commission in evaluating whether the Directive, as
currently formulated, remains the appropriate response
to the continuing challenges faced by the stakeholders
concerned, such as rights holders, commercial users,
consumers, educational and scientific users. As set
out in specifications of the study set out by the
Commission, its aim is "to assess the role that
the Directive has played in fostering the digital
market for goods and services in the four years since
its adoption". The impact of the Directive on the
development of digital (chiefly online) business
models, therefore, will be the focal point of our
enquiry throughout this study.
van Eechoud, S.J. van
Gompel et al.)
Recasting of Copyright & Related Rights for the
Knowledge Economy, report to the European
Commission, DG Internal Market, November 2006, 308 p.
See also the
Study carried out by
the Institute for Information Law for the European
Commission (DG Internal Market). Chapters 1 and 2
describe and examine the existing 'acquis
communautaire' in the field of copyright and related
(neighbouring) rights, with special focus on
inconsistencies and unclarities. Chapters 3-6 deal
with distinct issues that were identified a priori by
the European Commission as meriting special attention:
possible extension of the term of protection of
phonograms (Chapter 3), possible alignment of the term
of protection of co-written musical works (Chapter 4),
the problems connected to multiple copyright
ownership, including the issue of 'orphan works'
(Chapter 5), and copyright awareness among consumers
(Chapter 6). Chapter 7 provides an overall assessment
of the benefits and drawbacks of the fifteen years of
harmonisation of copyright and related rights in the
EU and dwells on regulatory alternatives.
|(with T. Dreier, eds.), European
Copyright Law, Concise IP Series, vol. 2, Kluwer Law
International 2006 (ISBN 90-411-2384-9),
for table of contents and more details.
Guibault, eds.) The Future of the Public Domain -
Identifying the Commons in Information Law, The
Hague: Kluwer Law International 2006, 377 p.
The presence of a
robust public domain is an essential precondition for
cultural, social and economic development and for a
healthy democratic process. But the public domain is
under pressure as a result of the ongoing march
towards an information economy.
This book takes a broad, 'information law' oriented
approach towards the question of preservering the
public domain, in which a wide range of interrelated
legal questions converge.
Thirteen contributions from academia worldwide make up
the present book, addressing the future of the public
domain from a different angle. In addition, all
authors were invited to reflect upon the notion and
role of the public domain in the context of
information law and policy.
Read chapter 1:
Future of the Public Domain. An introduction.
Implementation of Directive 2001/29/EC in The
Netherlands, Revue Internationale du Droit
d'Auteur (RIDA), 2005-206, p. 117-147.
Overview of the
transposition of the European Copyright (InfoSoc)
Directive into Dutch law. To say that the Dutch
legislature has enthusiastically embraced the
Directive would be overstating it. In respect of the
economic rights harmonized by the Directive, the Dutch
lawmaker has acted conservatively, and transposed the
norm of the Directive only insofar as amendment of
existing national provisions was deemed inevitable.
The legislature has been more forthcoming in the area
of exceptions. Six new limitations, all rubberstamped
by the Directive, have been introduced, while the
scope of several others has been expanded.
without Frontiers: is there a Future for the Satellite
and Cable Directive? in: Die Zukunft der
Fernsehrichtlinie / The Future of the 'Television
without Frontiers' Directive, Proceedings of the
conference organised by the Institute of European Media
Law (EMR) in cooperation with the European Academy of
Law Trier (ERA), Schriftenreihe des Instituts für
Europäisches Medienrecht (EMR), Band 29, Baden-Baden:
Nomos Verlag 2005, p. 65-73.
of the European Satellite and Cable Directive, guided
by the European Commission's review report. What has
been the impact of the Directive on the European
market for satellite and cable television services?
What will the future bring for the Directive in a
world where wired and wireless broadband media are
fixtures, horseraces and spinoffs: the ECJ domesticates
the database right’, EIPR, 2005-3, p.
On November 9, 2004
the ECJ handed down four important decisions on the
interpretation of the sui generis database right of
the European Database Directive. In the first place,
they hold that investment in 'creating' data, e.g. by
drawing up a list of sporting events, does not count
towards 'substantial investment', thereby denying
protection to such 'single-source' data as football
fixtures and horseracing schedules. By making a
distinction between 'created' and 'obtained' data, the
ECJ embraces one of the main arguments underlying the
'spin-off theory'. In the second place, the ECJ
clarifies that in determining infringement the
economic value of the appropriated data is irrelevant.
contract law: towards a statutory regulation? Study
conducted on commission for
the department of Scientific Research and Documentation
Centre (WODC) of the Dutch Ministry of Justice,
August 2004 (Text in the Dutch language).
For an English
translation of the Summary, please
of Database Right. Sole-source information banks under
the EU Database Directive.
Paper presented at Conference 'Antitrust, Patent and
Copyright', École des Mines/UC Berkeley, Paris, January
Schedules, Event Data and Telephone Subscriber Listings
under the Database Directive - The ‘Spin-Off’
Doctrine in the Netherlands and elsewhere in Europe,
paper presented at Eleventh Annual Conference on
International IP Law & Policy, Fordham
University School of Law, New York, 14-25 April 2003.
Seven years after the
adoption of the EC Database Directive, the contours of
the new database right remain difficult to draw, and
shrouded in controversy. One of many crucial questions
soon to be addressed by the European Court of Justice
concerns the 'substantial investment' test. The
Directive requires that such investment be made in the
'obtaining, verification or presentation of the
contents' of the database. Does this mean that the
investment must be aimed at producing a database, or
can data compilations that are generated as mere
'spin-offs' of other activities, such as program
schedules and event data listings, also benefit from sui
Guibault & S.M. van
Future of Levies in a Digital Environment’, March
Bakels & L.M.C.R.
Parliament Hearing on Software Patentability
patentability of computer programs, study
commissioned by the EP (April 2002).
This report is the
result of a short-term study commissioned by the
European Parliament on the desirability of EC level
legislation in the area of software patents. It is
based on a comparative analysis of the present state
of the law, and the advantages and disadvantages
appearing from current practice in the EC Member
States, the United States and Japan. While its
principal focus is on software patents, the report
also includes commentary on the patenting of
"business methods", as patents in this area
are closely related to software patents.
Guibault; assisted by M.A.R.
Vermunt & M.
on the conditions applicable to contracts relating to
intellectual property in the European Union’,
final report, study commissioned by the EC (May 2002).
exploitation of copyrighted works or performances has
increased dramatically in recent years. This
development is evident in respect of such ‘borderless’
media such as broadcasting and information services
provided online. However, more traditional sectors of
the information and entertainment industries, such as
book publishing and film production, are also
undergoing a process of rapid internationalisation,
particularly within the European Union. As a
consequence, contractual relationships between authors
or performers on the one hand, and publishers,
broadcasters or producers on the other hand, are
increasingly taking on an international dimension. In
view of the differences that presently exist at the
national level regarding the law applicable to
copyright contracts, this process of
internationalisation has, inevitably, prompted the
question whether some form of harmonisation at the
European level is called for. This is the central
question of this study.
|(with Stephen M. Maurer
& Harlan J. Onsrud)
Database Experiment’, Science, vol. 294 (26
October 2001), p. 789-790.
New Database Right: Early Case Law from Europe,
paper presented at Ninth Annual Conference on
International IP Law & Policy, Fordham
University School of Law, New York, 19-20 April 2001.
More than five years
have passed since the European Database Directive was
adopted on 11 March 1996. Implementation of the
Directive into national law was completed in the
1997-2000 period. Since implementation at least 25
court decisions dealing with the new database right
have been reported, mostly from courts in Germany, the
Netherlands and France.
of The Netherlands. Dutch copyright law, 1995-2000,
RIDA 187, January 2001, p. 111-175.
and Freedom of Expression in Europe, Rochelle
Cooper Dreyfuss, Diane Leenheer Zimmerman & Harry
First (eds.), Expanding the Boundaries of
Intellectual Property. Innovation Policy for the
Knowledge Society, Oxford: Oxford University Press
Can the rising tide
of copyright and related rights be stopped? Recent
court decisions from Europe seem to suggest that
freedom of expression and information, as guaranteed inter
alia by the European Convention on Human Rights
(ECHR), may limit overbroad protection. Contains a
description of the constitutional framework of
copyright in Europe, an introduction to Article 10
ECHR, an overview of copyright v. free speech case law
in Europe (focus on Germany, Netherlands and France),
analysis of relevant ECHR case law, and conclusions.
‘Why the Copyright Directive is Unimportant, and
2000-11, p. 499-505.
|(with Annemique M.E. de
Electronic Rights War. Who owns the rights to new
digital uses of existing works of authorship?, IRIS
– Legal Observations of the European Audiovisual
Great Copyright Robbery. Rights allocation in a digital
environment’, paper presented at conference A
Free Information Ecology in a Digital Environment
Conference, New York University School of Law, 2
In the shadows of the
‘copyright grab’ that is currently taking place at
the European and international political level, a
massive confiscation of authors' rights, possibly much
more destructive to society, is taking place. Media
concentration, media convergence and the lure of
multimedia product development have inspired media
companies all over the world to redraft their standard
publishing or production contracts in such a way as to
effectively strip the authors of their pecuniary
rights entirely. Authors have a simple choice: sign
away their rights or starve. This paper examines the
allocation of rights between independent authors and
producers from a mainly historical perspective, and
proposes several author-protective strategies,
including legislative measures.
(by Z. Bánhegyi
and A. Gyenge)
copyright-rablás, Szabad információ-ökológia
digitális környezetben, Konferencia, New York
University School of Law 31 March - 2 April, 2000.
|(with Kamiel J. Koelman)
Service Provider Liability for Copyright Infringement',
study prepared for WIPO, Geneva, December 1999
Aspects of Caching’, DIPPER (Digital
Intellectual Property Practice Economic Report) Legal
Report, 30 September 1999.
abridged and updated version was published in EIPR
2000-10, p. 482-493.
Study on copyright
aspects of (proxy and client) caching, prepared for
European Commission funded ‘DIPPER’ project
(Esprit study). Focus on present and future European
and U.S. law. Includes section on Internet (access)
provider liability, and discussion of alternative
as code, or the end of intellectual property as we know
it’, Maastricht Journal of European and
Comparative Law, Volume 6 (1999), No. 3, p. 308-318.
In this article, two
potential substitutes for the copyright regime are
described: contract law and information technology.
The combination of both instruments poses a direct
threat to the copyright system, as we know it.
Contract and ‘code’ combined have the capability
of making copyright and its set of statutory
limitations largely redundant, and may require an
entire new body of information law to safeguard the
the Database Directive’, in: Jan J.C. Kabel and
Gerard J.H.M. Mom (eds.), Intellectual Property and
Information Law, Essays in Honour of Herman Cohen
Jehoram, The Hague/London/Boston: Kluwer Law
International 1998, p. 183-200.
and Greed in Copyright City’, keynote speech,
IMPRIMATUR Fourth Consensus Forum, "Contracts and
Copyright: The Legal Framework for Future Electronic
Copyright Management", London, 2-3 July 1998.
Creatures. Copyright Exemptions: Towards Extinction?’,
keynote speech, IFLA/IMPRIMATUR Conference,
"Rights, Limitations and Exceptions: Striking a
Proper Balance", Amsterdam, 30-31 October 1997.
and multimedia. Licensing in the digital era’,
Congreso Europeo Derecho Sobre Audiovisual, Sevilla,
23-26 oktober 1996.
In this article a
number of the most relevant legal issues for the
emerging multimedia industry are identified. The main
focus is on the complicated licensing problems
involved in producing and publishing multimedia
of The Netherlands. Dutch copyright law 1990-1995’,
Revue Internationale du Droit d'Auteur (169) juli
1996, p. 128-195.
copyright to the information superhighway’, in:
P.B. Hugenholtz (ed.), The future of copyright in a
digital environment. Proceedings of the Royal Academy
Colloquium organised by the Royal Netherlands Academy of
Sciences (KNAW) and the Institute for Information Law
(Amsterdam 6-7 July 1995), Den Haag: Kluwer Law
International 1996, p. 81-102.
and electronic document delivery services’, Interlending
& Document supply, 1994-3, p. 8-14.