The limited significance of the ONB judgment for Dutch practice

Introduction

On 6 March 2025 the Court of Justice of the European Union gave judgment in a case about the permissibility of an arrangement under which the rights of a performer accrue to another party.¹ In this article I discuss the consequences of that judgment for Dutch practice.

The Dutch Copyright Act and the Dutch Neighbouring Rights Act contain provisions under which those rights do not accrue (or do not accrue in full) to the person who actually created the work or gave the performance, but to another party. This happens in situations where the legislature considers it practically or economically desirable that another party, such as an employer or a film producer, should acquire the rights. Dutch lawyers call this fictief makerschap, deemed authorship: the law treats someone other than the actual creator as the author. One example is the employer’s copyright: if you are employed and you arrange nothing else in your contract of employment, the copyright in your work accrues to the employer (in so far as that work fell within your duties; the rights in a poem written at home or during working hours by a pastry chef in employment simply remain with that pastry chef).

Deemed authorship has been the subject of debate for some time: is it fair, does the author have any choice, is there any equality of arms?

The premise of European legislation on copyright and neighbouring rights is the highest possible level of protection for the author and the performer. Where legislation then provides that those rights do not accrue to the author or performer, that detracts from their protection.

The ONB case

The ONB case, in which ONB stands for Orchestre National de Belgique, the National Orchestra of Belgium, concerns the neighbouring rights of the musicians employed by the ONB. Between 2016 and 2021 the musicians’ unions and the ONB negotiated over equitable remuneration for the musicians. The parties could not reach agreement, and the Belgian State then adopted a Royal Decree under which the neighbouring rights of performers employed by the ONB accrued to the ONB against remuneration fixed in that decree. The unions challenged that Royal Decree, arguing among other things that it was contrary to EU law. The Belgian court referred questions to the Court of Justice.

The Luksan v Van der Let case²

A similar question arose in Luksan v Van der Let. That case concerned an Austrian statutory rule under which the exploitation rights in commercially produced film works accrued to the film producer. It was also provided that the film producer and the author were each entitled to half of the author’s statutory right to remuneration, in so far as that right could be waived and the film producer had not agreed otherwise with the author. That last provision concerned, among other things, private copying levies.

In the case before the Court of Justice the question was whether the Austrian rule, under which exploitation rights accrue directly to the film producer, was contrary to EU law. Yes, the Court held.

The Court also held that a rebuttable presumption of transfer, under which the author is presumed to have transferred the exploitation rights to the producer unless the parties agree otherwise, is compatible with EU law. Article 45d of the Dutch Copyright Act contains such a presumption.

The ruling in the ONB case

The Court held, in my view not unexpectedly in the light of Luksan v Van der Let, that EU legislation precludes a rule under which exclusive rights such as the neighbouring rights of performers are transferred by “legislation” without the prior consent of the rightholders. The Court reached that conclusion on the basis of the following considerations:

(A) the transfer of performers’ neighbouring rights is governed by the provisions of Directives 2001/29 and 2006/115: those provisions preclude the exclusive rights granted from being transferred by legislation without the prior consent of the rightholders, unless those directives provide for a limitation covering such a transfer;

(B) the finding under (A) is supported by the international context of the protection of performers:

(i) as regards the protection of performers, compulsory licences can only be provided for in so far as such licences are compatible with the Rome Convention³, and the Rome Convention does not permit a general compulsory transfer of all the neighbouring rights of a category of performers;

(ii) the provisions of the WPPT⁴ likewise do not permit a general compulsory transfer of all the neighbouring rights of a category of performers;

(iii) account must be taken of the principle of freedom of contract and of a fair balance between rights and interests: that is not satisfied where rights are transferred without consent;

(C) the interpretation under (A) is supported by the objectives of the directives, which seek to secure a high level of protection of performers’ rights and to guarantee them an appropriate income.

The Court’s reasoning applies mutatis mutandis to exclusive rights such as copyright as well (in so far as that would not already follow from Luksan v Van der Let).

Significance for Dutch practice

The Dutch legislation on deemed authorship consists of articles 7 and 8 of the Copyright Act and article 3 of the Neighbouring Rights Act⁵.

Article 7 concerns the employer’s copyright. Where a copyright-protected work is made in the course of employment, the employer is regarded as the author, unless the parties agree otherwise. Article 7 therefore does not designate the employer as the rightholder in all circumstances; the parties can agree otherwise. Article 7 is accordingly not contrary to EU law.

Article 3 of the Neighbouring Rights Act contains an arrangement for performers in employment. That provision concerns the exercise of neighbouring rights and does not place the rights themselves with the employer. The employer is entitled to exercise the performer’s rights in so far as this has been agreed between the parties, or follows from the nature of the contract of employment concluded, from custom, or from the requirements of reasonableness and fairness.

The starting point is that the rights remain with the performer and that the employer can only exercise them on the basis of a contractual arrangement. That provision will not be contrary to EU law.

The position may be different for the rule that the exercise of the rights can also lie with the employer on the basis of the nature of the contract, custom, or reasonableness and fairness. On the other hand, custom and reasonableness and fairness lie at the basis of Dutch contract law (see articles 6:2, 6:248 and 6:258 of the Dutch Civil Code).

The judgment does have significance for article 8 of the Copyright Act. That article provides that a public institution, association, foundation or company that publishes a work as its own, without naming any natural person as its author, is regarded as the author of that work. No evidence to the contrary is admissible against that (the “unless” formula in the article relates only to publication that was unlawful in the circumstances referred to). That provision really does have to be held contrary to EU law, no doubt to the great satisfaction of many. Luksan v Van der Let and ONB, certainly read together, leave no further room for doubt.

¹CJEU 6 March 2025, IEF 22588, IEFbe 3886; ECLI:EU:C:2025:141 (Musicians v the Belgian State)
²CJEU 9 February 2012, ECLI:EU:C:2012:65 (Luksan v Van der Let)
³International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961
⁴WIPO Performances and Phonograms Treaty of 20 December 1996
⁵Article 6 of the Copyright Act also contains a rule of “deemed authorship”, but that article plays so small a part in practice that it is left out of account here. On the argument set out in this article, article 6 would be contrary to EU law.