This week a Dutch Court ruled a case of copyright infringement of popular Dutch newspapers. The main questions in this case were the scope of the press exception and the right of quotation in Dutch copyright law. A third important element in this case was the question whether the amount of compensation granted can be higher than the economic value of the infringed work.

A Dutch organization called Cozzmoss, which performed as an agent for several Dutch newspapers, claimed that a Dutch association called BVFP had posted news articles without the consent of the newspapers. Therefore, the association infringed the copyrights on the newsarticels and was liable for the damages.

In Dutch copyright law, there are several limitations to the exclusive copyright. The BVFP appealed to two statutory exceptions in the Dutch Copyright Act (DCA); art. 15 DCA, the press exception and art. 15a DCA, the right of quotation. In short, art. 15 Aw says the press can freely take over articles from other press agencies and art. 15a says you can take over parts of an article, within certain legal limits. The court ordered that BVFP did not comply with these exceptions and therefore committed copyright infringement. BVFP is not considered as a press agency and the quoted articles were not newsworthy, but background information. Furthermore, the BVFP did not legally quote, as the association made an extensive archive and this was not proportional. 

Interesting about this case is the compensation that was awarded. Cozzmoss suggested that doubling the compensation for the illegal re-use was in place. Cozzmoss claimed the damage was twice as high as the actual value of the texts, but did not provide enough evidence to support this claim. The judge mentioned this double compensation could be considered as a fine and the Dutch Copyright Act does not allow fines, only compensation for damages. Cozzmoss referred to the Terms and Conditions of the Dutch Association of Journalists (and the compensation rates mentioned therein). The BVFP was however not bound to these terms. If this was the case that would be quite odd, since the court had just established that BVFP is not a journalist but a re-user of the newspaper articles.

Although a double compensation was not awarded, the court did acknowledge that, at the end of the day, the newspapers will have more damage than just the licensing fees for the texts. As the texts were re-published online, they will lose control of there work and probably miss out on subsequent exploitation. The court decided to award 25% extra compensation for this reason, which is very interesting as this amount can not be supported by evidence of actual damage.  The question whether high compensation fees can be awarded without turning into punitive sanctions remains a compelling one. To be continued.

Reference: IE-Forum.nl