Court grants punitive damages in Dutch copyright case

Recently, the District Court of Breda issued an interesting ruling with regard to a case of copyright infringement by a freelance writer. The writer published a text without the original author’s consent. The article was placed on the website www.aroundhteglobe.nl by a company called ‘Weblication’. Weblication acted unlawfully and was obliged to compensate the damages. This case is particularly interesting because of the calculation of the awarded compensation, a controversial issue in Dutch copyright law.

The court ruled Cozzmoss, an organization that assists authors to protect their copyrights, had provided enough facts to assume the author suffered damages due to the infringement. The author missed out on a fair compensation for his work and therefore he is entitled to damages.

However, Cozzmoss is of the opinion that the author’s loss is actually larger than the economic value of his text. Cozzmoss is known for calculating this "economic value" which is based on a freelance fee (usually between € 0.36 and € 0.47 per word) and claiming two or sometimes even three times that amount because of "loss of exclusivity” and because “infringement should be discouraged”.

It is remarkable that the court agreed with Cozzmoss on this point in this case. The judge found there is ‘loss of exclusivity and less exploitation opportunities’ and therefore compensation of double the "economic value" has been awarded. The opinions of courts in the Netherlands seem to vary considerably. Several judges have now adopted the Cozzmoss calculation of multiplying by two, but some judges have also rejected this claim. Just recently the District court of Dordrecht wrote that doubling the economic value of the text is not legally sound. This reasoning is understandable, as this ‘doubling’ comes down to granting compensation plus a penalty and this is not allowed according to Dutch copyright law. Dutch copyright law is not equipped with a system of "punitive damages", only the suffered damages can be compensated. Therefore, a way forward could be focusing on the scope of damage that can be attributed to copyright infringement. Unfortunately, no guidelines on the limits of damage were set in this case.

Furthermore interesting in this case is that not all the costs of the lawsuit were granted. Also with respect to this aspect Dutch case law is inconsistent. According to Dutch IP law, the party that loses the IP case has to pay all the court costs of the winning party. However, many judges seem to be reluctant to award all the costs. A reason therefore might be that a judge wishes to compensate the losing party because he awarded a high amount of compensation. In this case this court ruled: "given the size and complexity of this case, and also given the level of the claimed sum, fairness precludes full allocation of the costs".

Read more about compensation and Cozzmoss on FutureofCopyright.com:

- Swedish court awards higher compensation for copyright violation due to filesharing 

- Relevant Dutch case law on copyright of news media

- Belgian publishers taking copyright enforcement to the next level

You can read the ruling here.

Reference: IE-forum.nl