The rump of a cow and the transfer of copyright

From 1 January 2026 the Dutch Copyright Act and the Dutch Neighbouring Rights Act are expected to change. Assigning copyright has always had to be done by deed, but from that date the underlying agreement to transfer will also have to be entered into in writing. What does that writing requirement actually mean? And on what material may the agreement be recorded?

The new writing requirement for the agreement to transfer copyright.

Under Dutch law a transfer of copyright has two separate elements: the contract in which the parties agree that the rights will pass, and the act of assignment (levering) by which they actually pass. That second step has always had to be done by deed, and the requirement of a deed follows from article 3:95 of the Dutch Civil Code. That article provides that assets (which include copyrights) for which no separate arrangement is made in articles 3:89 to 3:94 of the Civil Code are assigned by means of a deed intended for that purpose.

From 1 January 2026 the Dutch Copyright Act and the Dutch Neighbouring Rights Act are expected to be amended. From that moment the agreement to transfer[1] will also have to be entered into in writing.

What does that writing requirement actually mean?

Does it mean the agreement has to be recorded on paper? And if so, will newspaper or lavatory paper do? In 2018 the Advocate General at the Dutch Supreme Court addressed this question.[2] That case turned on what exactly a deed is. The Advocate General began by establishing that a deed is a “writing”. And what, then, is a writing? A writing is “any carrier of intelligible characters that convey a thought. The material on which those characters have been applied is irrelevant, as is the language in which this has been done.” That requirement will therefore also apply to the “agreement entered into in writing”, which is after all also a writing.

By “intelligible”, what is meant is presumably not so much “legible” as “comprehensible”, but that is this author’s interpretation.

More interesting, though, is the Advocate General’s point that the material is irrelevant. That means I can transfer copyright, and assign it, by an agreement written on the rump of a cow.[3],[4]

And you can think of countless other ways of recording it.

A further question is whether the requirement of a written agreement means that the agreement must be contained in a single document in its entirety, or whether the writing requirement is also satisfied where the agreement is recorded in an exchange of correspondence. The requirement of an agreement “in written form” is intended to cover every way of recording an agreement in a writing.[5] The agreement can therefore also be recorded in an exchange of emails, provided of course that the conditions of article 6:227a of the Dutch Civil Code are met.

There is also the question whether the material on which the agreement is recorded has to be imperishable. That does not seem to me to be the case. To begin with, nothing is “imperishable”, and paper certainly is not. Moreover, the existence of a “writing” can be proved in other ways even where the “writing” itself is no longer there.[6]

Does the signature requirement apply to written agreements too?

Article 156 of the Dutch Code of Civil Procedure provides that deeds are signed writings. But does the signature requirement also apply to written agreements? It does not seem to me to be strictly necessary: an agreement comes about through offer and acceptance, and recording it in writing is a formal requirement.[7]

So it seems to me that the writing requirement is satisfied if I send a draft agreement to the other party and the other party says the draft is agreed. An agreement has then come about, and it has been recorded in writing at the same time.

The role of a signature is to safeguard the authenticity of the agreement and to confirm that the statement contained in it is indeed that party’s statement. “The purport of signing is that a person makes it known that he takes responsibility for the words placed above the signature.”[8]

In the context of a contract for the sale of a house, the courts have held that it had to be a signed written agreement. It seems to me, though, that this requirement stems from the parliamentary history, in which it was expressly said that a single deed was required in that context.[9]

What counts as a valid signature? A cross is not enough, a stamp in block capitals is not enough, and a fingerprint has been held to be insufficient as well. What suffices are characters intended to individualise the signatory, but a stamp of a signature can also be enough, and initials alone will do too.[10]

I believe I once read that a small drawing was held sufficient to satisfy the signature requirement on a passport (but I cannot trace the case).

It is worth knowing that not every page has to be signed: a signature on the last page of an eighty-page agreement is in principle a sufficient signature under Dutch law.[11] (That does not, of course, alter the fact that initialling every page can be useful, for evidential reasons for instance.)

What does matter is signing below the text, because the signature covers only the text above it.

Written agreement and deed: two sides of the same coin?

Many readers will now say that the required written agreement and the deed requirement for assignment amount to the same thing. They can, but they need not. The agreement does not have to be signed; the deed has to be signed by at least the transferor.

Non-lawyers may find the distinction hard to hold on to, but the agreement covers the contractual arrangements between the parties, while the deed is the property-law step by which the rights actually change hands. The agreement and the deed can of course be one and the same document; an example of that was in issue in the judgment of The Hague Court of Appeal of 31 January 2008.[12]

Conclusion

From 1 January 2026, both the agreement to transfer (copy)rights and the assignment itself must be in writing. Signing the agreement is advisable; signing the deed of assignment is a requirement. The carrier of the text is free, so yes, let your imagination run. But do sign below the text.

Originally published on LinkedIn and also on IE-Forum.

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[1] The agreement is what Dutch property law calls the titel: the legal ground on which the transfer rests. It is not “title” in the English sense of ownership.

[2] ECLI:NL:PHR:2018:1423

[3] Taken from the (fictitious) case Board of Inland Revenue v Haddock by the English writer A.P. Herbert.

[4] Source of the photograph: https://jollycontrarian.com/index.php?title=Albert_Haddock; photographer unknown, it appears to be a still from, or a press photograph of, the 1967 BBC film The Negotiable Cow.

[5] Explanatory Memorandum, Parliamentary Papers II 2001/02, 28 197, no. 3, p. 51

[6] See for instance Amsterdam District Court 17 June 2009 (Maas v Armada Productions), IEF 7995.

[7] See Explanatory Memorandum, Parliamentary Papers II 2023/24, 36 536, no. 3, p. 5 and also Explanatory Memorandum, Parliamentary Papers II 2001/02, 28 197, no. 3, p. 54, where it is noted that “In so far as a formal requirement entails that a written agreement must be signed in order to come about, (…)”.

[8] See the opinion cited in note 2.

[9] See Arnhem-Leeuwarden Court of Appeal 16 June 2020, ECLI:NL:GHARL:2020:4578 and Arnhem-Leeuwarden Court of Appeal 31 October 2023, ECLI:NL:GHARL:2023:9196.

[10] See note 2. On initials alone: ECLI:NL:HR:2012:BV6698.

[11] ECLI:NL:HR:2019:641

[12] The Hague Court of Appeal 31 January 2008 (Holierhoek v Houwer), AMI 2008, p. 103