"A non-transferable copyright? The collective guardianship of creative minds ". Thus is the title of an article by intellectual property lawyer Dick van Engelen on the proposed Authors' Contract Rights bill that would amend the Dutch Copyright Act.

The Dutch Author Contract Rights Bill seeks to strengthen the position of the creator of a creative work against parties obtaining the copyrights on his work, as the Ministries of Economic Affairs, Justice, Education, Culture and Science explain. For example, copyright wouldn’t be transferable until after the author’s death, while as of yet it is possible at any time. Exclusive license agreements for a period longer than five years would by terminable by the licensor at the end of every fifth year. Such provisions would have prevented so-called strangling contracts. (More info in English)

An internet consultation on the bill was launched June 1. Stakeholders were invited to the provide feedback on the proposed changes. In the Dutch Legal Magazine (Nederlands Juristenblad) Dirk van Engelen puts forward his views on the bill. According to Van Engelen it lacks necessity and convincing substantiation.

Substantiation 

That someone may have regret the transfer of his copyright afterwards, when it has become more valuable, is simply a case of bad luck and comes with the risks of sales in general, says Van Engelen. Copyright holders are old enough to take a wise decision on their own in this matter, unless there is coercion, error, fraud or abuse of circumstances or guardianship.

Error and abuse of circumstances are severe terms. But as a result of growing media concentration authors and performers increasingly find themselves in a structurally weaker negotiating position, according to a report (Engl. summ.) by professor Hugenholtz and Dr. Guibault of the Institute for Information Law (IViR) of the University of Amsterdam. This weaker negotiating position "in practice leads easy to unilateral standard exploitation contracts where their interests are insufficiently taken into account," they pose.

According to Van Engelen Dutch case law shows "no clear examples of poignant cases where a ‘unfair’ transfer of copyright or performers' rights have caused major problems, or where the non-transferability of copyrights have guarded a rights holder from great injustice. "

Misplaced romanticism

That the legislature sees it, as “a positive side effect that the non-transferable copyright is not subject to seizure and would therefore remain outside the bankruptcy seizure and the jurisdiction of the administrator” is "a misguided romantic notion of copyright", says Van Engelen. According to Van Engelen, the threshold for copyright protection has become so low that it now primarily focuses on commercial and commonplace work. No ‘piteous owner', but 'strictly business' says Van Engelen.

The closing date for entries to the internet consultation on the Authors' Contract Rights Bill is September 30, 2010.

Source: NJB 2010, p. 1827-1829 and DickvanEngelen.nl