Preliminary draft to amend Dutch Copyright Act: authors' contract rights and copyright transfer after authors' death

The preliminary draft to the adaptation of the Dutch Copyright Act (Auteurswet, or Aw) was presented online yesterday. The proposed changes will surely affect the exploitation of copyrighted works and contracts in this regard.

Transferral of copyright only after author’s death

The preliminary draft proposes an amendment of Article 2 Aw. The amendment states that copyright will no longer be transferable at any time, but instead only after the death of the author. The consultation document explains the rationale behind the proposed modification of Article 2, paragraph 1, Aw:

"Having ‘non-transferableness’ as a starting point emphasizes the special bond between an author and his work. This draft thus reasons from a so-called monistic concept of copyright. (...) Since a transfer of copyright is now no longer possible during the author’s life, he will have to exploit his copyright by means of licensing. (...)"

Authors contracts right

Finally the long awaited and advocated chapter (Ia) on author’s contracts right has arrived. It’s main goal is to protect authors against so-called ‘choking contracts’ (‘wurgcontracten’). Following the licensing model proposed in Article 2, the authors’ contracts rights chapter governs the relationship between the licensor (the author) and the licensee (the producer, publisher, etc.). The new provisions in Articles 25b to 25h Aw essentially regulate the following:

• An exclusive license for a period longer than five years can be terminated by the licensor at the end of each period of five years (Article 25b, paragraph 1, Aw).
• Authors are entitled to a 'fair compensation' for granting an exclusive license. A compensation is considered to be fair, if its height is fixed by the Minister of Education, Culture and Science (‘OCW’) in consultation with the Minster of Justice. The Minister of OCW will only determine a fair compensation after a joint request by a trade association of authors and a rights holder or an association of rights holders of such works (Article 25c, paragraphs 1 and 2, Aw).
• A court may, at the request of the author, change an exclusive licensing agreement to his favor, if the received fee shows a serious disproportion (Article 25d, paragraph 1, Aw).
• The author may terminate the licensing agreement if the exclusive licensee of the work won't make use of the license within a reasonable time after signing the licensing agreement (25th Article, paragraph 1, Aw).
• An exclusive license clause is terminable, if it holds claims on future works of the author for an unreasonably long or inadequately specified period (Art, 25f, paragraph 1, Aw).
• The author may not waive the provisions of this chapter. The provisions are of mandatory law where governed or (mostly) executed in the Netherlands (Article 25h, paragraph 1, Aw).

Internet Consultation

Internetconsulatie.nl (‘internet consultation’) offers opportunity to all interested parties to provide feedback on the proposed amendments to the Dutch Copyright Act.