for Information Law (IViR)
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1012 CG Amsterdam
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|On 16 March 2011 Stef
van Gompel received his doctorate from the University of
Amsterdam for his thesis entitled Formalities in
Copyright Law: An Analysis of their History, Rationales
and Possible Future (Kluwer Law International 2011).
He studied law at the
University of Amsterdam (2005, cum laude) and Music
Management at the Fontys Business College of Higher
Education in Tilburg (1999). He is specialized in
intellectual property law and, in particular, in
national and international copyright law. He has written
various articles and book chapters on this topic.
He is secretary of the
Dutch Copyright Committee that advises the Minister of
Justice of the Netherlands on copyright-related matters.
He is also a member of the editorial board of the Dutch
copyright journal AMI (Tijdschrift voor
Auteurs-, Media- & Informatierecht) and chairman of the Study group on the history of
copyright of the Dutch copyright organisation,
Vereniging voor Auteursrecht (VvA).
At IViR, Stef is currently
working as a postdoc researcher, preparing the
contribution of the Netherland to the
Primary Sources on Copyright (1450-1900)
project, edited by Lionel Bently (University of
Cambridge) and Martin Kretschmer (University of
(with E. Lavik)
On the prospects of raising the
originality requirement in copyright law: Perspectives
from the Humanities,
Journal of the Copyright Society of the USA,
2013-3, p. 387-443.
In 1903, in Bleistein v
Donaldson Lithographing, Justice Holmes famously
concluded that judges are ill-suited to make merit
judgments when determining the eligibility for
protection of works. Subsequent courts and
commentators have generally followed his caution.
Yet, no one has thought through how the copyright
system would work were Justice Holmes not heeded.
What if courts were called upon to determine the
aesthetic merit of a work? How would they go about
it? And would they be able to separate the gold from
the dross by drawing upon an aesthetic evaluation of
These questions inevitably arise upon reading some
recent proposals to raise the originality threshold.
Though it is rarely explicitly recognized, the
reconfiguration that these proposals entails would
effectively bring originality’s meaning in copyright
law more into line with how the term is used in
aesthetics, where it is considered a function of the
work’s level of creativity, measured by its degree
of departure from conventional expression.
Drawing on the concept of domain from sociocultural
studies of creativity, we explain just why it would
be so enormously problematic for courts to identify
and to apply a stricter originality criterion that
would require them to make decisions on the basis of
merit. By comparing the domain of copyright law to
the domain of patent law, we argue that it is the
latter’s relative coherence and orderliness that
enables patent examiners to get traction when
assessing an invention’s degree of non-obviousness.
The cultural domain, by contrast, is less
rule-bound, and therefore non-obviousness is much
harder to establish and validate. Aesthetics – both
as a set of cultural practices and products and as
an academic discipline – are simply too
heterogeneous to provide adequate toehold for the
legal analysis of higher degrees of originality.
Exploring the reasons and reasoning behind the ban
on aesthetic merit in copyright law from a
humanities perspective, this article offers a more
detailed and nuanced account of Justice Holmes’
conclusion. Contrary to conventional wisdom we argue
that the inherent subjectivity of aesthetic
preferences does not in itself make it any harder to
pinpoint an objective standard of aesthetic merit,
though it does make it harder to provide
justification for any such standard. Furthermore,
the article questions the premise on which the
proposal to raise the originality threshold rests,
namely that it will cause the undeserving bottom of
works to fall out, leaving only aesthetically worthy
and socially valuable works protected. Before
introducing a stricter originality criterion we need
a more careful and empirically based analysis of
just what the problems are, what areas of copyright
law are affected, and exactly how and why a higher
threshold would improve the situation.
(with E. Lavik)
Quality, merit, aesthetics and purpose: An inquiry into
EU copyright law's eschewal of other criteria than
originality, Revue Internationale du Droit
d'Auteur (RIDA), 2013-236, p. 100-295.
This article examines the rule that
no other criteria than originality shall be applied
to determine the eligibility for protection of
works, as contained in a few EU Directives on
copyright (i.e. the Computer Programs Directive, the
Term Directive and the Database Directive). While
aimed to preclude criteria such as quality, merit,
aesthetics and purpose from the subject-matter
definition of copyright, the legal significance and
practical implications of this rule is not entirely
clear. Analysing the legislative history of the ‘no
other criteria’-clause in EU copyright law and its
equivalent in the national laws of four EU Member
States (i.e. France, Germany, the Netherlands and
the United Kingdom), the article observes that the
objective of the rule is to prevent the grant or
refusal of copyright by the courts from being
dependent on subjective evaluative judgments about a
work’s intrinsic value or worth. Judges are not
supposed to assess whether a work aesthetically or
commercially stands out, but only need to determine
whether it meets the originality threshold. In
practice, however, while the courts practically
always refrain from using the lack of success, merit
or quality as an argument to withhold
copyright from a creation, they do not necessarily
ignore a work’s success, merit or quality when
granting protection to it. Moreover, the article
finds that genres and categories of works are not
always definable on formal properties alone and that
judges sometimes cannot escape making qualitative or
aesthetic considerations when determining the
eligibility for protection of low original works.
The article concludes that, since
judges sometimes cannot make a clear distinction
between protectable and non-protectable
subject-matter on the basis of the originality
criterion alone, copyright law’s concept of
originality would fail to adequately serve its
discriminatory function, should the ‘no other
criteria’-clause always be taken literally.
The Orphan Works Chimera and How to
Defeat It: A View From Across the Atlantic,
Berkeley Technology Law Journal,
2013-3, p. 1347-1378.
This article contends that the
orphan works problem (the problem of unknown or
untraceable right owners) is a generic problem. It
is not specific to a certain form of use, but has
implications across the copyright spectrum. Yet, it
manifests itself in different ways, depending on the
type of use that is made of these works. The article
consists of three parts. Employing the metaphor of
the Chimera, a three-headed she-monster in ancient
Greek mythology, Part I introduces the different
ways in which the problem manifests itself and
describes the legal uncertainty that the different
categories of users of orphan works experience.
Next, Part II argues that there is not one best
approach to address the orphan works problem.
Rather, it suggests adopting a multifaceted approach
that would provide adequate relief for the different
categories of users of orphan works. Part III
(with R. van der Noll, L. Guibault, J. Weda,
J. Poort, I. Akker &
Flexible Copyright: The Law and Economics of Introducing
and Open Norm in the Netherlands, study commissioned
by the Dutch Ministry of Economic Affairs, Agriculture &
Innovation, SEO-rapport nr. 2012-60, Amsterdam, August
This study analyses the law and
economics of introducing flexibility in the system
of exceptions and limitations in Dutch copyright
law. Flexibility would exist in an open norm, on the
basis of which the courts can decide whether certain
uses of copyrighted material are permissible or not,
instead of explicitly defining this in the law. The
report assesses problem areas where the lack of
flexibility creates legal disputes and potential
barriers to innovation and production. The core of
the study concerns the analysis of the economic
rationale and effects of introducing flexibility in
the Dutch legal order in the form of an open norm.
Copyright Law: An Analysis of Their History, Rationales
and Possible Future,
Information Law Series 23, Alphen aan den
Rijn: Kluwer Law International 2011. Available at
copyright is ‘automatic’. From the moment an
original work is created, the author enjoys all the
benefits that copyright protection entails, without
the need to complete a registration, deposit the
work, mark it with a copyright notice, or comply
with any other statutorily prescribed formality.
However, the digital revolution has caused a
paradigm shift in the way copyright-protected works
are created and consumed. Copyright law is now
facing significant challenges arising from the need
to establish legal certainty over copyright claims,
improve rights clearance, and enhance the free flow
of information. Inevitably, proposals to introduce
formalities in copyright law (or reintroduce them,
as the absence of formalities has not always been
the norm) have risen to prominence in legal debate.
This book examines whether reintroducing copyright
formalities is legally feasible. Based on a
comprehensive and thorough analysis of copyright
formalities, it sets out to establish the extent to
which the current copyright system allows for their
reintroduction. To this end, the author describes
the role and functions of formalities, revisits the
history of formalities at the national and
international levels, examines the scope of the
international prohibition on formalities, and
scrutinizes the rationales behind this prohibition,
including an in-depth examination of the validity of
the argument that copyright is a ‘natural right’ and
therefore should be protected independently of
The author skilfully evaluates and contrasts the
conflicting theories according to which formalities,
on the one hand, add legal certainty to claims on
the ownership of property, and, on the other, hamper
individual authors from seeking adequate protection
for their works. This book makes an important
contribution to legal science by answering questions
that so far have been neglected or only marginally
addressed. To the degree that current copyright law
permits reintroducing formalities, the author posits
the specifications that will determine to a great
extent what role and functions they may eventually
fulfil: depending on the aims to be achieved,
lawmakers must choose which types of formalities
shall be imposed, and what their legal consequences
shall be. This book goes a long way towards
reinforcing the foundation for those decisions.
Collective Management in the European Union,
in Daniel Gervais (ed.), Collective Management of
Copyright and Related Rights, second edition, Alphen
aan den Rijn: Kluwer Law International, 2010, p.
examines efforts to regulate the collective
management of copyright at the European level. It is
divided in three main parts. First, the chapter
describes the current state of the law concerning
collective rights management organizations (CMOs) in
Europe, as pronounced over the past few decades in
decisions of the European Court of Justice and the
European Commission in competition matters. Second,
the chapter discusses the recent efforts deployed by
the European lawmakers toward the establishment of a
legal framework governing the activities of CMOs in
Europe, and more specifically the multi-territorial
licensing of online music services. The third part
analyses the actual and potential impact on the
market for the cross-border collective management of
legitimate online music services of the most recent
measures adopted by the European bodies. The chapter
critically concludes on the overall state of the law
in Europe pertaining to CMOs.
M.M.M. van Eechoud,
B. van der Sloot
& P.B. Hugenholtz)
Report of the Netherlands for ALAI 2011 Study Days
(ed. with S.
Angelopoulos) Digitisation and Online
Exploitation of Broadcasters' Archives, IRIS Special,
Strasbourg: European Audiovisual Observatory 2010.
The archives of
many television broadcasters now contain materiel
which includes more than half a century of
contemporary, documentary and entertainment history
and are of immense cultural and economic value.
Digitisation has created an entirely new technical
basis for making these assets available to a wide
audience, and there are a whole range of projects
aimed at opening up audiovisual archives (including
those of broadcasters). However, many projects to
open up broadcasters' archives and exploit them
online generally run up against serious problems
when it comes to clearing the rights for these
archived works. These problems arise, firstly, due
to a contractual practice that developed in the
pre-digital era and to aspects of copyright law that
do not really meet the needs of the digital age.
Secondly, the very large number of works stored in
archives constitutes a challenge that is not easily
overcome. The aim of this IRIS Special is to discuss
the subject from a number of different perspectives.
The team of authors involved is accordingly made up
of representatives of many different interests:
copyright holders and those who look after their
interests, television broadcasters, lawyers and
here for more information about this publication.
Formalities in the digital era: an obstacle or
opportunity?, in: L. Bently, U. Suthersanen & P.
Torremans (eds.), Global Copyright: Three Hundred
Years Since the Statute of Anne, from 1709 to Cyberspace,
Cheltenham: Edward Elgar 2010, p. 395-424.
This paper, which was
presented at the 2009 ALAI conference in London,
examines the possible reintroduction of copyright
formalities against the background of the challenges
that copyright law faces in the digital era. It does so
by contrasting the current calls for reintroducing
formalities with the legal-historical reasons for their
abolition. The paper concludes that, while, in the
pre-digital era, the objections against copyright
formalities were real, in the light of the changes
caused by the advent of digital technologies, there is
now sufficient reason to reconsider subjecting copyright
Les formalités sont mortes, vive les formalités!
Copyright formalities and the reasons for their decline
in nineteenth century Europe, in: R. Deazley, M.
Kretschmer & L. Bently (eds.),
Privilege and Property:
Essays on the History of Copyright, Cambridge: Open Book
Publishers 2010, pp. 157-206.
Modern copyright law is
based on the premise that copyright originates from
original authorship and exists independently from
formalities. This was different in the past, when
copyright law was fully occupied with formalities. This
paper examines the development of copyright formalities
against the background of the upcoming national rights
thinking and some conceptual innovations in copyright
law in nineteenth century Europe (France, Germany, the
Netherlands and the UK). Among other things, this paper
concludes that, from a historical perspective,
formalities are not as incompatible with the natural
rights view as is commonly believed. This may cast new
light on the possible reintroduction of copyright
formalities, which is increasingly called for in the
current digital era.
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
M.M.M. van Eechoud,
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.
Helberger, N. Dufft & P.B.
Forever: Why Extending the Term of Protection for Sound
Recordings is a Bad Idea, European Intellectual Property Review, 2008-5, p.
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
the Potential of Pre-Existing Content: How to Address the
Issue of Orphan Works in Europe?, IIC
International Review of Intellectual property and
Competition Law, Vol. 38 (2007), No. 6, p. 669-702.
Archives and the Inability to Clear Rights in Orphan Works,
IRIS plus (Supplement to IRIS - Legal Observations of
the European Audiovisual Observatory), 2007-4.
There is also a German
translation of this article.
This article deals with
the question of 'orphan works', i.e., works whose right
owners cannot be identified or located. The fact that a
particular work is orphaned makes it impossible to clear
the rights and to legally reutilise the work. To unlock
the potential of the many pre-existing works stored in
audiovisual archives, it is essential that legal
solutions will be devised to adequately address this
problem. This article examines and evaluates a number of
solutions that could possibly be introduced at the
European or national level.
(with L. Guibault) Collective
Management in the European Union, also published in:
Daniel Gervais (ed.), Collective Management of
Copyright and Related Rights, The Hague, Kluwer Law
International, 2006, p. 117-152.
Hugenholtz, M.M.M. van Eechoud
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
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.
Helberger, N. Dufft, K. Kerényi, B. Krings, R.
Lambers, C. Orwat and U. Riehm)
Rights Management and Consumer Acceptability: A
Multi-Disciplinary Discussion of Consumer Concerns and
Expectations’, State-of-the-Art Report,
INDICARE, December 2004.