Visiting address
Korte Spinhuissteeg 3
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1012 CX Amsterdam
The Netherlands

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.

05.03.2013

08.11.2012

The Story of the Tape Recorder and the History of Copyright Levies, in: Copyright and the Challenge of the New, B. Sherman & L. Wiseman (eds.), Information Law Series, vol. 25, Alphen aan den Rijn: Kluwer Internation 2012, p. 179-196.
ISBN 9789041136695.

06.11.2013

See preface here.
See also Works of Literature, Science and Art, p. 19-41.
See also Government Works, M.M.M. van Eechoud, p. 141-175.

18.10.2012

Works of Literature, Science and Art, in: A Century of Dutch Copyright Law. Auteurswet 1912-2012, P.B. Hugenholtz, A.A. Quaedvlieg & D.J.G. Visser (eds.), Amsterdam: Delex 2012, p. 19-41.

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).

18.09.2012

The Dutch case for flexibility, in: Intellectual Property and Innovation: A Framework for 21st Century Growth and Jobs, I. Hargreaves & P. Hofheinz (ed.), The Lisbon Council, September 2012, p. 53-57.

13.09.2012

(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 United States.

See also http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=202179

05.06.2012

(with M.R.F. Senftleben) 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?

14.11.2011

(with  M.M.M. van Eechoud, S.J. van Gompel, L. Guibault & B. van der Sloot) Report of the Netherlands for ALAI 2011 Study Days (Dublin).

19.05.2011

(with D.A. Korteweg) Digitization of audiovisual materials by heritage institutions: Models for licences and compensations (summary), study commisioned by Images for the Future/Knowledgeland, April 2011.

09.05.2011

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 treated.

08.03.2011

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.

08.03.2011

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. 303-320.

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 offers conclusions.

21.12.2010

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 copyright protection.
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.

See also:

• Table of contents;
• Chapter 1: Introduction.

More information about the book, see catalogue of Oxford University Press.

23.10.2010

European Copyright Code, AMI, 2010-4, p. 120-126.

14.10.2010

(with 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, p. 61-71.

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 indispensable.

03.03.2010

SatCab revisited: The past, present and future of the Satellite and Cable Directive, IRIS Plus 2009-8, p. 7-19.

29.01.2010

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 interests affected.

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.

13.10.2009

Copyright 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.

01.11.2008

(with N. Helberger, N. Dufft & S.J. van Gompel) Never Forever: Why Extending the Term of Protection for Sound Recordings is a Bad Idea, E.I.P.R., 2008-5, p. 174-181.

This article 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.

04.06.2008

(with R.L. Okediji) Conceiving 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.

25.03.2008

(with N. Helberger) No 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.

24.01.2008

(with L. Guibault, G. Westkamp, T. Rieber-Mohn, et al.) Study 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.

• See also Part II: The Implementation of Directive 2001/29/EC in the Member States, G. Westkamp, Queen Mary Intellectual Property Research Institute, February 2007.
• See also the executive summary.

This study, 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.

22.03.2007

(with M.M.M. van Eechoud, S.J. van Gompel et al.) The Recasting of Copyright & Related Rights for the Knowledge Economy, report to the European Commission, DG Internal Market, November 2006, 308 p.
See also the executive summary.

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.

10.01.2007

See flyer for table of contents and more details.

27.07.2006

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: The Future of the Public Domain. An introduction.

16.06.2006

The 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.

15.12.2005

Copyright 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.

Critical evaluation 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 rapidly converging?

15.12.2005

(with M.J. Davison), ‘Football fixtures, horseraces and spinoffs: the ECJ domesticates the database right’, EIPR, 2005-3, p. 113-118.

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.

23.03.2005

(with L. Guibault), Copyright contract law: towards a statutory regulation? Study conducted on commission

For an English translation of the Summary, please click here

06.08.2004

Abuse 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 15-16, 2004.

18.02.2005

Program 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 generis protection?

Published 16.06.2003

(with L.M.C.R. Guibault & S.M. van Geffen) ‘The Future of Levies in a Digital Environment’, March 2003.

Published 24.03.2003

(with R.B. Bakels & L.M.C.R. Guibault), European Parliament Hearing on Software Patentability (Contribution IViR).

Published 27.11.2002

(with R.B. Bakels), The 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.

Published 25.07.2002

The cross-border 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.

Published 27.06.2002

(with Stephen M. Maurer & Harlan J. Onsrud) ‘Europe’s Database Experiment’, Science, vol. 294 (26 October 2001), p. 789-790.

Published 27.10.2001

The 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.

Published 01.05.2001

Chronicle of The Netherlands. Dutch copyright law, 1995-2000, RIDA 187, January 2001, p. 111-175.

Published 24.11.2000

Copyright 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 (2001).

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.

Published 05.04.2000

Opinion, ‘Why the Copyright Directive is Unimportant, and Possibly Invalid,

Published 11.10.2000

(with Annemique M.E. de Kroon) The Electronic Rights War. Who owns the rights to new digital uses of existing works of authorship?, IRIS – Legal Observations of the European Audiovisual Observatory, 2000-4.

Published 15.12.2001

‘The 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 April, 2000.

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.

Hungarian translation:
(by Z. Bánhegyi and A. Gyenge) A nagy copyright-rablás, Szabad információ-ökológia digitális környezetben, Konferencia, New York University School of Law 31 March - 2 April, 2000.

Published 05.04.2000

‘Copyright Aspects of Caching’, DIPPER (Digital Intellectual Property Practice Economic Report) Legal Report, 30 September 1999.

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 solutions.

Published 30.09.1999

‘Code 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 public domain.

Published 07.09.1999

‘Implementing 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.

Published 13.03.2000

‘Fear 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.

Published 13.03.2000

‘Fierce Creatures. Copyright Exemptions: Towards Extinction?’, keynote speech, IFLA/IMPRIMATUR Conference, "Rights, Limitations and Exceptions: Striking a Proper Balance", Amsterdam, 30-31 October 1997.

Published 02.11.1997

‘Copyright 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 programmes.

Published 30.10.1996

‘Chronicle of The Netherlands. Dutch copyright law 1990-1995’, Revue Internationale du Droit d'Auteur (169) juli 1996, p. 128-195.

Published 07.09.1999

‘Adapting 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.

Published 07.09.1999

‘Copyright and electronic document delivery services’, Interlending & Document supply, 1994-3, p. 8-14.

Published 07.09.1999

Updated 16.04.2013