Dutch Court: copyright infringement despite permission publisher

With today's digital world of e-books, downloads en iPads, we almost forget the good old copyright protected book. Yesterday, a Dutch website www.rechtspraak.nl published a ruling of a Dutch Court of Alkmaar, dealing with the relation between authors and publishers. The company Silk Screen published the Dutch book “Zeefdruk. Een indruk” on its website, without having the author’s permission.

The main question was who was the maker and thus in principle the copyright holder of the work, the publisher or the author of the book? According to the Dutch Copyright Act, you must first ask permission from the copyright holder if you want to publish a work. Silk Screen published the book on its website, with the granted permission of the copyright holder, but this was not sufficient. The company believed that publisher Bürhmann was the copyright holder, as Bührmann was listed as the publisher of the book and this name was mentioned in the copyright notice ©. Besides this notice, it was stated that for publication or reproduction the publisher’s written permission was needed.

So what went wrong? Silk Screen had received permission from the publisher to publish the book. The problem was however that this permission was not in writing, and, above all, did not have the required author’s permission to publish. In general and according to the Dutch Copyright Act, the maker is the one who creates the work, which in this case is the person who writes the book. The author is regarded as maker and by extension as the copyright holder. Thus, Silk Screen should have approached the author instead of the publisher. However, in the Dutch Copyright Act there is a provision that allows the maker to transfer its copyright transfers to someone else (such a publisher), but - unfortunately for Silk Screen - this did not happen in this case.  

However, it does not seem totally crazy that Silk Screen thought publisher was the right holder, given the aforementioned indications (copyright notice e.g.). The court ruled however that the mere mentioning of a legal entity as the publisher and the copyright notice cannot be seen as a presumption of authorship and subsequently the rightholdership. Moreover, the author was mentioned on the title page and after the epilogue of the book. By the way, a provision of the Dutch Copyright Act (Article 8) also states that a legal entity (i.e. the publisher) can only be considered the author of a work, in case it publishes a work without mentioning the natural person as the author.  Given the above, Silk Screen could not have relied on the presumption of authorship of the publisher.

The thing we can learn from this ruling is that the author is to be considered the one who creates the work and therefore is the copyright holder. He has the exclusive rights (to publish and reproduce).

References: IE Forum and Rechtspraak.nl