Some civil-law observations on the proposed amendments to the Copyright Act

At the firm I make a point of reminding everyone that copyright is part of civil law. And my maxim is one people here could recite in their sleep: it starts in Book 3!

The preliminary draft of the Act amending the law on authors’ contracts was published on 4 April. That draft also proposes an amendment to article 2 of the Dutch Copyright Act.

The following is to be added to article 2(3): In the absence of a deed, the transfer may be set aside by the author.

To my mind, a number of things are being conflated here.

Article 3:84 of the Dutch Civil Code requires three things for the transfer of an asset: a valid title, power of disposal, and delivery. The delivery requirement set out in article 2 of the Copyright Act has, since the current Civil Code came into force, in fact been superfluous. The delivery of assets is governed by Book 3 of the Civil Code, and article 3:95 provides: Apart from the cases governed by articles 89-94 and subject to articles 96 and 98, assets are delivered by a deed intended for that purpose.

The delivery of copyright is not governed by the articles mentioned, so a deed is required for the delivery of copyright, even if that requirement were left out of article 2 of the Copyright Act.

The absence of a deed means there is no delivery, and the absence of delivery means there is no transfer. So in the absence of a deed there is no transfer at all, and that non-existent transfer cannot then be set aside by the author. The addition is therefore not only legally incorrect, but also unnecessary.

An alternative would be to provide that the title must be recorded in writing and that, in the absence of a written title, the title may be set aside by the author.

Such a provision is possible, as is the proposed article 25ba of the Copyright Act. Article 3:39 of the Civil Code provides, after all, that legal acts not performed in the prescribed form are void unless the law provides otherwise.

That provision also makes better sense of the wording in article 2 of the Copyright Act, “which necessarily follow from the nature and purport of the title”.

The amendment to article 2 is prompted by what is apparently a widespread unfamiliarity in practice with the formal deed requirement, and in particular with when a digital file satisfies it.

First a word about the deed: a deed is any carrier of intelligible characters conveying a content of thought. The material on which those characters have been applied is irrelevant, as is the language in which this has been done. Nor is it required that the writing be handwritten, unless that is a requirement expressly following from the law. (Advocate General E.M. Wesseling-van Gent, ECLI:NL:PHR:2018:1423.) That means an engraved glass, or the rump of a cow, can also satisfy the deed requirement.

The deed must be signed, at any rate by the transferor. That signature consists of characters written in the hand of the signatory, intended to individualise the person making the declaration, according to AG Wesseling-van Gent.

The discussion (see the explanatory memorandum to the preliminary draft) then turns to the electronic signature, but a step is being skipped there, in my view. Where the law imposes a formal requirement, as the writing requirement does here, when does an electronic file satisfy it? An important question, given article 3:39 of the Civil Code cited above.

On this, article 156a of the Dutch Code of Civil Procedure provides: Private deeds may be drawn up other than in writing, in such a way as to enable the person for whose benefit the deed provides evidence to store the content of the deed in a manner making that content accessible for future use during a period appropriate to the purpose the deed is intended to serve, and allowing an unaltered reproduction of the content of the deed.

I would also look to article 6:227a(1) of the Civil Code: Where it follows from the law that a contract is only validly or incontestably concluded in written form, that requirement is also satisfied where the contract has been concluded electronically and

• a. is accessible to the parties;

• b. the authenticity of the contract is sufficiently guaranteed;

• c. the moment at which the contract was concluded can be established with sufficient certainty; and

• d. the identity of the parties can be established with sufficient certainty.

These requirements of article 6:227a will in any event apply in future where the proposed article 25ba of the Copyright Act becomes law and the exploitation agreement granting an exclusive licence is concluded electronically.