Copyright Still Has Its Boundaries: Dutch Supreme Court Confirms Exclusion of Technology
Literary, Scientific or Artistic Work
The concept of work is a popular topic. In the past years the
Dutch Supreme Court has given at least four rulings regarding the
matter that copyright attorneys have been discussing for many
years: the copyright protected work. The Dutch Copyright Act
protects 'literary, scientific or artistic works ' (Section
1), but it fails to mention exactly what these works are. A further
indication can be found in Section 10 of the Act, which lists a
number of creations that may be a work (inter alia books,
musical works, buildings, paintings and computer programs), but
this list is followed by the addition '….and generally any
creation in the literary, scientific or artistic areas (…)'.
These are therefore only examples: other works are also imaginable.
Because the Act does not prescribe exactly what is and what is not
protected by copyright law, and since copyright law does not have a
filing requirement as, for instance, patent law or trademark law,
it is often not clear beforehand whether copyright protection can
be invoked for a particular product. It has been tried in case law
to offer a little more hold: in 1991 the Supreme Court ruled that a
creation had to have an 'own, original character'
('Eigen, Oorspronkelijk Karakter') and had to bear
the 'personal stamp of the author' (Persoonlijk Stempel
van de maker) in order to be eligible for copyright protection
(HR 4-1-1991, NJ 1991, 608: Van Dale/Romme). This formula,
which many specialists have fondly shortened to 'eok &
ps', became the test for copyright protection. But even this
test had to be substantiated once again in each separate case, as a
result of which uncertainty remained. On the other hand, it
appeared from case law that the threshold in the Netherlands for
the substantiation of the test is very low: it was even assumed
with respect to rather trite or non-creative products such as
slogans and television programming information that they contained
sufficient 'eok & ps' in order to be eligible for
protection.
Perfumes and Conversations
In the past years the Supreme Court gave a number of rulings with
respect to the concept of work, and gave it more substantiation and
interpretation. In the first instance this seemed to entail a
relaxation: for instance, in the Kecofa/Lancôme case the
Supreme Court ruled that aromatic substances may have sufficient
eok & ps in order for them to be a work, and it also ruled that
the backbench conversations of the late Willem Endstra might be
eligible for copyright protection. With regard to the
Technip case the Supreme Court considered that even a
'kinetic scheme', a schematic reflection of a collection of
chemical reaction equations, could also have eok & ps and that
the Court of Appeal of Amsterdam had failed to appreciate this by
not giving further reasons why it had rejected the protection for
such a scheme. This decision was received with scepticism: it is
true that such a kinetic scheme seems difficult to create, but the
question is whether it has the required originality and personality
that are characteristic for copyright. After all, it is not a
Picasso. The choices made by the designer of the scheme will not be
prompted by his creativity, but will be determined by its
functionality. The question is whether copyright law is the proper
mechanism to protect this kind of functional, technical creations,
and also if as a result thereof copyright is not shifting too much
in the direction of patent law, the IP right that exclusively
protects technical solutions.
Armature Protected by Copyright?
This consideration was also the basis for the judgment of the
Supreme Court of 29 January 2010. The main question to be answered
in this judgment was whether Gavita, producer of horticultural
illumination, could invoke protection for an armature for
greenhouse illumination that it had designed. The Court of
Amsterdam had ruled that it could, the Court of Appeal ruled that
it could not, and thus the case eventually ended up before the
Supreme Court. The Supreme Court upheld the judgment of the Court
of Appeal. The Court of Appeal had ruled before that the design of
the armature was the result of a choice that was limited by
technical starting points to such an extent that there could be no
question of eok & ps. According to the Court of Appeal, the
creativity of the maker of the armature is limited by technical and
functional requirements (as much as possible light transmission,
discharge of heat, accessibility of the parts for repair, etc.) to
such a large extent that there is no room anymore for creative
choices and, as a result, for copyright protection. In the opinion
of the Supreme Court this reasoning shows a correct legal
conception, and therefore Gavita's complaints were not granted.
The Supreme Court did not elaborate on this - unfortunately, it
also said little about Gavita's complaint that the same
functionality can also be accomplished in all kinds of different
manners, as a consequence of which creative choices would actually
have been made for the design of the armature.
This judgment has made it clear once again that in copyright law
there is no room for technology: choices that are prompted by
technical requirements or technical starting points are
insufficiently creative and cannot lead to copyright protection.
This is also expressed in the substantiation of the eok & ps
criterion, which in its function as gatekeeper must keep the
copyright law doors closed for technology.