Copyright Law Restriction Not Applicable to News Reports
A discussion of the judgment of the Court of
Zwolle-Lelystad, 10 February 2010, HA ZA 09-507, Nederlandse
Dagbladpers&diverse uitgevers vs. Provincie Flevoland
This is not the first time that the Nederlandse Dagbladpers and
various publishers ("Dagbladpers") have raised the
question of whether or not the government owes a fee for taking
over articles of the Dagbladpers for the composition of its
newspaper cuttings services. In 1995 the Dutch Supreme Court ruled
that analogue newspaper cuttings services are allowed under the
exceptions to copyright law. In 2002 and 2005 the opinion on
digital newspaper cuttings services were less favorable for the
government.
This case is once again about the analogue newspaper cuttings
services. Because a part of copyright law has been harmonized on a
European level since 1995, the Dagbladpers apparently considered
this to be a reason to test whether this would give rise to a
different opinion on the taking over of news articles in an
analogue newspaper cuttings service. The Dagbladpers therefore
requested the Court of Zwolle to adjudicate whether the newspaper
cuttings service practice of the Municipality of Flevoland is
allowed on the basis of copyright law.
The Journalistic Exception Under Copyright Law
Pursuant to Section 15 (1) of the Dutch Copyright Act the taking
over of reports from the media in the media, also known as the
journalistic exception, is allowed, unless the copyright on these
articles has been reserved. However, it follows from subsection 2
that such a copyright reservation cannot be made in respect of news
reports and miscellaneous reports. In this case the Dagbladpers
argued that this exception should only be made with respect to
purely factual news reports, which do not bear the personal stamp
of the author. The Court did not concur with this, which, in my
view, is correct. After all, the kind of factual news reports to
which the Dagbladpers refers are usually not protected by
copyright, as a result of which this interpretation would render
the exception to the possibility to make a copyright reservation
meaningless. Furthermore, the rationale of the journalistic
exception lies in ensuring a free information flow, which implies
that a copyright reservation that stands in the way of this free
flow may not be interpreted too broadly.
Dutch Practice in Line with European
Legislation?
Is this Dutch legislation, which may set aside the copyright
reservation for news reports, still allowed for a proper operation
of the journalistic exception since the entering into effect of the
European Copyright Directive? This Directive mentions the option of
a reservation against taking over news reports, but subsequently
stipulates that the Member States are free to maintain already
existing restrictions to copyright law, such as prohibiting a
reservation for news reports. Therefore, in this respect the
Copyright Act is in line with the Copyright Directive.
The Court went even further than that and tested the practice of
the analogue newspaper cuttings services against the so-called
'three-step test' of the Copyright Directive (Section 5
(5)). This three-step test determines - in brief - that a copyright
law restriction (in this case the journalistic exception) may be
set aside in a concrete case, when the rightholder (in this case
the Dagbladpers) can prove that this use (in this case for the
newspaper cuttings services) conflicts with the 'normal
exploitation' of its material and that it prejudices its
interests.
According to the Court, however, the Dagbladpers has
insufficiently substantiated that as a consequence of the
distribution of the newspaper cuttings services by the Municipality
it would have incurred a loss, and the Court rejected a reliance on
this three-step test.
Three-Step Test: Here to Stay?
Although the Court rejected the reliance on the three-step test, it
is prepared, however, to test the concrete effect of the
journalistic exception in this case against this three-step test.
This is remarkable, because it is still controversial whether this
test is not only aimed at the Dutch legislator. The Court, however,
assumed that the three-step test is an independent test against
which the Court may test in a concrete case. It was not the first
time that a Court did so. The Court of The Hague too already judged
a concrete case twice before according to this three-step test in
2002 (newspaper cuttings services) and recently in its
Private Copy judgment.
As a result, the three-step test seems to become a fixed part of
Dutch copyright law more and more. This is something that should be
taken into account by rightholders (extra protection), or on the
contrary, by persons relying on their use being allowed on the
basis of an exception to copyright law (such as the right to quote
or the journalistic exception). In a digital context, for instance,
it is quite conceivable that digital exploitation (e.g. offering in
searchable form) of news reports may under circumstances prejudice
the normal exploitation of the rightholder to these reports.