Dutch 
Staff
photo: Monique Kooijmans
 
Stef van Gompel
senior researcher
 
Institute for Information Law (IViR)

Visiting address
Korte Spinhuissteeg 3
1012 CG Amsterdam
The Netherlands

Post address
Kloveniersburgwal 48
1012 CX Amsterdam
The Netherlands

kamer B2.13
tel: +31 20 - 525 36 43
fax: +31 20 - 525 30 33
 


Curriculum Vitae
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 Glasgow).


Publications
Reintroducing Copyright Formalities: Controversies and Challenges, The Copyright & New Media Law Newsletter, 2014-2, p. 7-9.

25.07.2014


Copyright Formalities in the Internet Age: Filters of Protection or Facilitators of Licensing, Berkeley Technology Law Journal, 2014-3, p. 1425-1458.

This article examines how copyright formalities may aid in addressing the objectives of enhancing the free flow of information by enlarging the public domain and facilitating the licensing of copyright protected materials. For this purpose, it maps the different objectives for reintroducing copyright formalities and provides a brief overview of the types of formalities that might be imposed, including the legal consequences that can be attached to them. The article then explores in more detail which formalities, in what way, can assist in accomplishing the specific objectives of enriching the public domain and facilitating rights clearance. It concludes with a synthesis of the main findings.

18.03.2014


(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 such kind?
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.

24.10.2013


(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.

03.09.2013


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 concludes.

26.03.2013


(with R. van der Noll, L. Guibault, J. Weda, J. Poort, I. Akker & J.M. Breemen) 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 2012.

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.

01.11.2012


Formalities in 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 Wolters Kluwer.

At present, 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 formalities.

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.

24.08.2011


(with L. Guibault) 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. 135-167.

This chapter 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.

13.07.2011


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

19.05.2011


(ed. with S. Nikoltchev and C.J. 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 copyright experts.

See here for more information about this publication.

14.01.2011


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 to formalities.

20.10.2010


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.

01.09.2010


(with P.B. Hugenholtz) 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


(with M.M.M. van Eechoud, P.B. Hugenholtz, L. Guibault and N. Helberger) 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 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


(with N. Helberger, N. Dufft & P.B. Hugenholtz) Never Forever: Why Extending the Term of Protection for Sound Recordings is a Bad Idea, European Intellectual Property Review, 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


Unlocking 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.

04.06.2008


Audiovisual 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 and French 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.

20.04.2007


(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.

20.03.2007


(with P.B. Hugenholtz, M.M.M. van Eechoud 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


(with N. Helberger, N. Dufft, K. Kerényi, B. Krings, R. Lambers, C. Orwat and U. Riehm) Digital Rights Management and Consumer Acceptability: A Multi-Disciplinary Discussion of Consumer Concerns and Expectations, State-of-the-Art Report, INDICARE, December 2004.

03.02.2006


Updated 25.07.2014