What is the ONB judgment and why does it matter for copyright?

The ONB judgment puts centre stage a question that arises more often in practice than you might think: who is actually the author of a work created on commission or in the course of employment? The ruling bears directly on articles 7 and 8 of the Dutch Copyright Act, the provisions that govern this. The Dutch Copyright Committee has since considered the matter and issued advice on possible amendments to the legislation.

Which scenarios does the Dutch Copyright Committee describe?

The committee sketches three scenarios, all three of which assume a combined amendment of both article 7 and article 8.

Why might article 8 be allowed to lapse?

In practice article 8 is a double-edged sword. It works in your favour where you are a legal person wanting to be able to act quickly, but it can just as easily be deployed against the actual author. Repealing article 8 would mean that authorship always rests with a natural person. That strengthens the position of the person who actually created the work, which fits the central premise of copyright law.

What could this mean for authors and clients in the creative industries?

This debate affects everyone who creates works on commission or within an organisation: designers, writers and musicians, for instance. If article 7 were amended into a presumption of transfer rather than an automatic allocation of authorship, the negotiating position would shift in the author’s favour.

An alternative to article 8 of the Dutch Copyright Act

Article 8 can go, but an elegant alternative would be to recast it as an authorisation to bring proceedings, in the way article 9 does for publishers of anonymous works.

I read the advice of the Dutch Copyright Committee on the consequences of the ONB judgment for Dutch copyright law with great interest. It is clear and thorough and it offers alternative solutions. I also wholeheartedly endorse the call to give explicit attention to entitlement to, and the division of, statutory remuneration rights.

Although the committee sketches three scenarios, a fourth scenario and one further alternative seem to me to be missing.

All three of the scenarios the committee describes assume a combined amendment of articles 7 and 8 of the Dutch Copyright Act, but a realistic alternative is of course to amend article 7 alone (into a presumption of transfer, as I would see it) and to let article 8 lapse.

I have always regarded article 8 of the Copyright Act as a monster: welcome when it suits you, and to be feared when it is deployed against you.

Article 8 can go, but an elegant alternative would be to recast it as an authorisation to bring proceedings, in the way article 9 does for publishers of anonymous works.

I can well imagine that parties who make a work public want to be able to act against third parties who unlawfully take material from it or otherwise infringe it. The legal “hassle” of a formal authorisation at the time of the commission will often be forgotten, if anyone is aware of the need for such an authorisation at all.

The text might then read, for example:

Where a public institution, an association, foundation or company makes a work public as originating from it, without naming a natural person as its author, copyright may be exercised as against third parties, both for the benefit of the rightholder [or the author? – RW] and for its own benefit, by the public institution, association, foundation or company making the work public.

And to make it complete, this could be added:

The provisions of this article are without prejudice to the rights of the rightholder [or the author? – RW].

Roland Wigman

Lawyer

Roland knows everything about film law and film copyright. After a brief career as a film producer, he has been assisting film producers, film financiers, film distributors and creators for more than 35 years. Both nationally and internationally.

Possible questions about the proposal to amend articles 7 and 8 of the Copyright Act

The ONB judgment puts centre stage a question that arises more often in practice than you might think: who is actually the author of a work created on commission or in the course of employment? The ruling bears directly on articles 7 and 8 of the Dutch Copyright Act, the provisions that govern this. The Dutch Copyright Committee has since considered the matter and issued advice on possible amendments to the legislation.
Article 7 determines who counts as the author of works made in the course of employment. Article 8 governs the situation in which a legal person, such as a foundation, association or company, makes a work public as originating from it without naming a natural person as its author. In that case the legal person is regarded as the author. Both articles determine who acquires the copyright, and that has direct consequences for the position of the original author.
In practice article 8 is a double-edged sword. It works in your favour where you are a legal person wanting to be able to act quickly, but it can just as easily be deployed against the actual author. Repealing article 8 would mean that authorship always rests with a natural person. That strengthens the position of the person who actually created the work, which fits the central premise of copyright law.

Questions? Do ask.