COPYRIGHT ISSUES AND THE INFORMATION SOCIETY DUTCH PERSPECTIVES F. Willem Grosheide IIB I ss to works onli 1.1 The right to information 1.1.1 General It may here be taken for grantedthat since the second half of the 20th century the Infomation Society may now be considered as running parallel to the 19th century Industral Society. One of the strik ing effects of this development particularly made possible by the spread of digital technology is the commodification of information, ie. today information, together with physical goods is the raw material socio-economic and cultural life in the industralised world. As a consequence, if the question of access to property and ownership of physical goods was a major issue in the 1gth century, this became equally true for the question of access to property and the ownership of infomation in the 20th century. Besides, since the rapid and broad extension of transborder socio-economic and cultural exchange is another characteristic of daily life in the late 20th century industrialised societies, the effects of the said commodification are at the same time experienced on a world wide basis. 3 Understandably, the indicated development has influenced and still influences the national and international legal environment with regard to access to information For the Netherlands, belonging to the Western part of the industrialised world, this means that its legal environment has gradually become less detemm ined by domestic and more by European developments. European developments on two levels: that of the Council of Europe, ie. the European Convention on Human Rights(ECHR), and that of the European Union, ie the Treaty of Rome/(EC Treaty). In light of the Treaty of Rome, adaptatin of national Dutch law to EU legis lative actions in the domain of copyright law and related law should be mentioned From the various directives that are in force in this respect in particuar mention should be made of the recent Copyright Harmonisation Directive(CHD). Apart from this, the legal environment has to be constantly adapted to transnational developments such those instigated by(non-)governmental bodies likeUNO, WTO and the WIPO. The Dr. F Willem Grosheide is Professor of Private Law and Intellectu engraaffInstitute/centerforIntellectualPropertyLawUniversityUtrecht(www.cier.nl)and practis ng lawyer at Van Doome Amsterdam. An effort is made to write ths paper as strictly as possible following a questionnare prepared by Professor Xavier Linant de Bellefonds, General Reporter, Faculte de Droit de Paris Xll, France, adding, however, issues that seem of partcular interest from a Dutch perspective. An early account of this development can be found n E.W. Ploman, L Clark Hamilton, Copyright-ntellectual property in the information age(London 1980) re on thi subject the follow Debora I Halbert Intellectual Property in the Information Age-The Politics of Expanding Ownership Rights(Quorum Books London 1999); Jeremy Rifkin, The Age of Access- How th Shift from Ownership to Access is Transforming Modem Life( Penguin Books London 2000)
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY: DUTCH PERSPECTIVES F. Willem Grosheide* III B 1 1 Access to works online1 1.1 The right to information 1.1.1 General It may here be taken for grantedthat since the second half of the 20th century the Information Society may now be considered as running parallel to the 19th century Industrial Society. One of the striking effects of this development particularly made possible by the spread of digital technology is the commodification of information, i.e. today information, together with physical goods is the raw material of socio-economic and cultural life in the industrialised world. As a consequence, if the question of access to property and ownership of physical goods was a major issue in the 19th century, this became equally true for the question of access to property and the ownership of information in the 20th century.2 Besides, since the rapid and broad extension of transborder socio-economic and cultural exchange is another characteristic of daily life in the late 20th century industrialised societies, the effects of the said commodification are at the same time experienced on a worldwide basis.3 Understandably, the indicated development has influenced and still influences the national and international legal environment with regard to access to information. For the Netherlands, belonging to the Western part of the industrialised world, this means that its legal environment has gradually become less determined by domestic and more by European developments. European developments on two levels: that of the Council of Europe, i.e. the European Convention on Human Rights (ECHR), and that of the European Union, i.e. the Treaty of Rome/(EC Treaty). In light of the Treaty of Rome, adaptatin of national Dutch law to EU legislative actions in the domain of copyright law and related law should be mentioned. From the various directives that are in force in this respect in particular mention should be made of the recent Copyright Harmonisation Directive (CHD). Apart from this, the legal environment has to be constantly adapted to transnational developments such as those instigated by (non-) governmental bodies likeUNO, WTO and the WIPO. The * Dr. F. Willem Grosheide is Professor of Private Law and Intellectual Property Law, Molengraaff Institute/Center for Intellectual Property Law University Utrecht (www.cier.nl) and practising lawyer at Van Doorne Amsterdam. 1. An effort is made to write this paper as strictly as possible following a questionnaire prepared by Professor Xavier Linant de Bellefonds, General Reporter, Faculté de Droit de Paris XII, France, adding, however, issues that seem of particular interest from a Dutch perspective. 2. An early account of this development can be found in E.W. Ploman, L. Clark Hamilton, Copyright-intellectual property in the information age (London 1980). 3. From the already abundant literature on this subject the following sources may be mentioned: Debora J. Halbert, Intellectual Property in the Information Age – The Politics of Expanding Ownership Rights (Quorum Books London 1999); Jeremy Rifkin, The Age of Access - How the Shift from Ownership to Access isTransforming Modern Life (Penguin Books London 2000)
GROSHEIDE Universal Declaration of Human Rights(UDHR), Treaty of New York(BUPO), TRIPS Agreement (TRIPS), and the WIPO Copyright Treaty(WCT)are examples of this state of affairs 4 Evidently, the commod ification of infomation in todays society has transformed it into a primary good which can be ranked alongside other primary goods such as rights, liberties, powers, opportunities, income and wealth. 5 In the same way as indiv iduals are assumed to want rights, liberties, powers and so on, they can also be assumed to want infomation. In fact, taking the different definitional approaches to information for granted, it may be said that when taken together they have a umulative impact suggesting that infomation is a primary good that is a foundation for the other kinds of primary goods mentioned. It may here be noted that the commodification of information is only one aspect of -what Rifkin calls-the metamorphosis in the organization of human relations from the production and commercal exchange of propertied goods to access to commodified service relationships. 7 As a consequence physical property is less relevant than in the past as it is no longer the sole reference point by which to measure economic activity. The dvent of electronic commerce is a determining factor in this respect, transfoming physical goods into services, while services themselves are now less perceived being comparable to sales and more as long-term relationships between servers and clients ow crucial information is in this respect is reflected by the fact that transactions with regard to infomation can be made using the computer network simultaneously for the formation of the contract and as a pipeline for the delivery thereof. Texts, music, software and mages offer examples of information products that are traded in such a way Particularly these products fit rather well within the terminology used by the EU with regard to electronic commerce: Information society services. 9 The commodification of infomation and the fact that it has become a primary good has appeared to have a major effect on the access to information since it changed its status from mere factual into simultaneously legal. Today, from a legal point of view An interesting analysi of thi state of affairs s offered by Anthony d'Amato, Dors estelle Long, International Intellectual Property Law(Khwer LawIntemational 1997). According to J. Rawb, A Theory of Justce(London Oford New York 1972), p. 72, prmary goods can be natural or social. In the contextof this paper the noton of primary goods refers to socia primary goods. Compare Peter Drahos, A Philosophy of Intellectual Property(Dartmouth Aldershot 1996) p 173-175. It s of course ckar that there i no one comprehensive defnition of nformation with a transdicphnary val d iy. On the contrary, the multitude of approaches to nformation indicates that t has a number of functions and rols t play, which differ accord ng to the perspective from which information is approached Rifkin, referred to innote 3, pp. 84-85 Compare F w. Grosheide, K. Boele-Woeki, Articles on Intemational Commercial Contracts and Intellectual Poperty -E Commerce Issue, Molengrafica 1999/2000(Vermande Lelystad 20005 P B Hugenholtz(ed)Copyright and Electroni Commerce(Kluwer Law intemational The Hague London Boston 2000). coes Control and Innovation under the Emerging EU Electroni Commerce= Framework, in F.w. Groshede, K Boele- Woelki, referred to in footnote 8, pp 212
GROSHEIDE 212 Universal Declaration of Human Rights (UDHR), Treaty of New York (BUPO), TRIPS Agreement (TRIPS), and the WIPO Copyright Treaty (WCT) are examples of this state of affairs.4 Evidently, the commodification of information in today’s society has transformed it into a primary good which can be ranked alongside other primary goods such as rights, liberties, powers, opportunities, income and wealth.5 In the same way as individuals are assumed to want rights, liberties, powers and so on, they can also be assumed to want information. In fact, taking the different definitional approaches to information for granted, it may be said that when taken together they have a cumulative impact suggesting that information is a primary good that is a foundation for the other kinds of primary goods mentioned.6 It may here be noted that the commodification of information is only one aspect of – what Rifkin calls – the metamorphosis in the organization of human relations from the production and commercial exchange of propertied goods to access to commodified service relationships.7 As a consequence physical property is less relevant than in the past as it is no longer the sole reference point by which to measure economic activity. The advent of electronic commerce is a determining factor in this respect, transforming physical goods into services, while services themselves are now less perceived being comparable to sales and more as long-term relationships between servers and clients. How crucial information is in this respect is reflected by the fact that transactions with regard to information can be made using the computer network simultaneously for the formation of the contract and as a pipeline for the delivery thereof. Texts, music, software and images offer examples of information products that are traded in such a way.8 Particularly these products fit rather well within the terminology used by the EU with regard to electronic commerce: Information society services. 9 The commodification of information and the fact that it has become a primary good has appeared to have a major effect on the access to information since it changed its status from mere factual into simultaneously legal. Today, from a legal point of view, 4. An interesting analysis of this state of affairs is offered by Anthony d’Amato, Doris Estelle Long, International Intellectual Property Law (Kluwer Law International 1997). 5. According to J. Rawls, A Theory of Justice (London Oxford New York 1972), p. 72, primary goods can be natural or social. In the context of this paper the notion of primary goods refers to social primary goods. 6. Compare Peter Drahos, A Philosophy of Intellectual Property (Dartmouth Aldershot 1996), p. 173-175. It is of course clear that there is no one comprehensive definition of information with a transdiciplinary validity. On the contrary, the multitude of approaches to information indicates that it has a number of functions and roles to play, which differ according to the perspective from which information is approached.. 7. Rifkin, referred to in note 3, pp. 84-85. 8. Compare F.W. Grosheide, K. Boele-Woelki, Articles on International Commercial Contracts and Intellectual Property – E Commerce Issue, Molengrafica 1999/2000 (Vermande Lelystad 2000); P.B. Hugenholtz (ed.) Copyright and Electronic Commerce (Kluwer Law international The Hague London Boston 2000). 9. Comp. T.P. Heide, Acces Control and Innovation under the Emerging EU Electronic Commerce= Framework, in F.W. Grosheide, K. Boele-Woelki, referred to in footnote 8, pp. 189-235
COPYRIGHT ISSUES ANDTHEINFORMATION SOCIETY information is perceived as a legal object in two different but relted respects information as(the object of)a human right on the one hand, and information as(the object of) a property right on the other. In a European context this means information in the sense of Article 10 EChr and related national constitut ional law on the one hand, and information in the sense of Articles 33, 81 and 82 EC Treaty and related national private law and competition law on the other. Obviously, the notions ofaccess to and a right to information have a different meaning depending on the terms of reference From the perspective of human rights, access to and a right to information refer to every individuals ability to participate in the public debate in order to benefit from a societys reservoir of information. At stake here is the passive side of the free flow of information principle. From the perspective of private av and competition law access to and a right to infomation refer to the possibility of fencing infomation in order to commercially exploit it using the legal technique of a property right. It is at this point that copyright la wand related aw such as the lega protection of databases- in the EU extensively regulated through various Directives come into play. The catch-phrase coined, which is usually in this respect determines that guaranteeing the free flow of infomation does not necessarily mean that access to information should befree It follows that access to infomation, depending on the perspective taken, refers to either a consumers or a producer's right to information. Paradoxica lly both rights ire acknowledged and guaranteed by intermational and national legal instruments. It is up to international and national govemmental bodies to strike a balance between the conflicting interests at stake. Things are even more complica ted since govemmental bodies have an interest of their own as prominent suppliers of public information. 10 1.1.2 The Netherlands In the Netherlands over the years the debate on the indicated issues has kept pace with the European and international discussion. This is well documented in many studies of a fundamental as well as a technical nature. For a ba lanced insight into the mainstream of Dutch thinking in this respect reference should be made to two reports issued by the Dutch Ministry of Justice's standing official advisory committee on copyright law and related issues. In these reports from respectively 1998 and 2001 the Comm issie Auteursrecht provides its views on the future of Dutch copyright law and related law in the light of the new international legal instruments that, at the time of publication were either already in force or were forthcoming. Particularly the general points of departure taken by the committee in its 2001 report are worth being quoted here. 12 F. Willem Grosheide, Copyright Law form a User's Perspective: Access Rights for Users EIPR Vol 23 Issue 7(2001 ). 321-325. Caroline Uyttendaele, Openbare informatie( Maklu Antwerpen 2002). See, in add tion to the already mentioned sources, the following studies F.W. Grosheide, Auteursrechtop maat(Kluwer Deventer 1986): AA Quaedv leg, Auteursrecht op techniek (Teenk Willink Zwolle 1987): P B. Hugenholtz, Auteursrecht op nformatie(Kluwer 213
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY 213 information is perceived as a legal object in two different but related respects: information as (the object of) a human right on the one hand, and information as (the object of) a property right on the other. In a European context this means: information in the sense of Article 10 ECHR and related national constitutional law on the one hand, and information in the sense of Articles 33, 81 and 82 EC Treaty and related national private law and competition law on the other. Obviously, the notions of access to and a right to information have a different meaning depending on the terms of reference. From the perspective of human rights, access to and a right to information refer to every individual’s ability to participate in the public debate in order to benefit from a society’s reservoir of information. At stake here is the passive side of the free flow of information principle. From the perspective of private law and competition law access to and a right to information refer to the possibility of fencing information in order to commercially exploit it using the legal technique of a property right. It is at this point that copyright law and related law such as the legal protection of databases – in the EU extensively regulated through various Directives - come into play. The catch-phrase coined, which is usually in this respect determines that guaranteeing the free flow of information does not necessarily mean that access to information should befree. It follows that access to information, depending on the perspective taken, refers to either a consumer’s or a producer’s right to information. Paradoxically both rights are acknowledged and guaranteed by international and national legal instruments. It is up to international and national governmental bodies to strike a balance between the conflicting interests at stake. Things are even more complicated since governmental bodies have an interest of their own as prominent suppliers of public information.10 1.1.2 The Netherlands In the Netherlands over the years the debate on the indicated issues has kept pace with the European and international discussion. This is well documented in many studies of a fundamental as well as a technical nature.11 For a balanced insight into the mainstream of Dutch thinking in this respect reference should be made to two reports issued by the Dutch Ministry of Justice’s standing official advisory committee on copyright law and related issues. In these reports from respectively 1998 and 2001 the Commissie Auteursrecht provides its views on the future of Dutch copyright law and related law in the light of the new international legal instruments that, at the time of publication were either already in force or were forthcoming. Particularly the general points of departure taken by the committee in its 2001 report are worth being quoted here.12 10. F. Willem Grosheide, Copyright Law form a User’s Perspective: Access Rights for Users. EIPR Vol. 23 Issue 7 (2001), p. 321-325. 11. Caroline Uyttendaele, Openbare informatie (Maklu Antwerpen 2002). 12. See, in addition to the already mentioned sources, the following studies: - dissertations F.W. Grosheide, Auteursrecht op maat (Kluwer Deventer 1986); AA Quaedvlieg, Auteursrecht op techniek (Tjeenk Willink Zwolle 1987); P.B. Hugenholtz, Auteursrecht op informatie (Kluwer
GROSHEIDE In its advice, the Copyright Committee has used some general points of departure on the basis of which it has developed the specif ic parts of the adv ice. Firstly, the Comm ittee sought to retain, where possible, the text and the system of the current 1912 Copyright Act. For the large part, this concerns open terms that have stood the test of time. In this context, the Committee has put forward proposals to fomulate the legislation in this field, preferably in a technology-neutral (or meda-neutral) manner. On the other hand, the Committee has tried to keep up with the technology sed in the Copyright Directive, along the lines of Instruction 56 of the Instructions for Rules and Regulations. After all, it must be prevented that the result of the Directive will be that the frameworks of terms in force in the aws and regulations of the Member States will diverge even more than they do already, while the intended objective of the Directive is hamonization. In addition, the Committee is of the opinion that no unnecessary amendments must be made in the context of the implementation. The Committee therefore recommends that the exploitation rights remain intact insofar as this is possible. The Committee also adv ises that the existing exemptions should be retained, at least where this is allowed by the Directive. This aspect is examined in further detail under 2. 4. 314 Rejecting the notion of as well as the need for a fundamental rev ision of the existing opyright Act DCA)(e.g. combining it with the Neighbouring Rights Act (NRA)) the committee has reta ined to its previous advice in which it was of the opinion that the existing two-tier approach under the dCa, providing the copyright owner with the reproduction right(verveelvoudigingsrecht )and the publication right (openbaarmakingsrecht) sufficient in order to cope with the three tier approach of the WCTand the Chd, providing fora reproduction right, a right of communication to the public, and a distribution right. Some other views by the Commissie Auteursrecht taken with regard to specific issues such as fair compensation, limitations, protection against the circumvention of technological measures, and obligations with respect to infomation on rights Deventer 1989); DJGi. Visser, Auteursrecht op toegang( Vuga Den Haag 1997). monographs w. Grosheide, Paradigms in Copyright Law, in Brad Sherman, Alan Strowel, Of Authors and Orgins( Clarendon Press Oxford 1994), pp. 204-233; dem, Toegang tot nformatie, in F w Grosheide, Communicatie- en Med iarecht(Ars Aequi Lbri2000), pp. 213-264 Egbert Dommering a.o., Infomatierecht(Oto ramwinckel Amsterdam 2000): P B. Hugenholtz, The future of copyright in a digital environment(Kluwer Law International The Hague, London, Boston 1996) articles There are abundant of articles deal ing with the subject at ssue. They are mainly published m specialised legal joumals such as AMI(formerly Informatierecht/AMI) IER; Median Copyright Committee, Advice concemng Copyright Neighbouring Rights and New Media (The Hague 1998, Copyright Committee, Advise on the Implementation of the EC Directive copyright and related rights in the infomation society (The Hague 2001), also admissible wwwmnjustnla beleiauteurswet/uk/. On this webs ite can also been consulted text in the Englsh language of legislation inforce on copyright aw and related law. See alo E.J. Arkenbout, E. Dijk, P.w. van Wick, Auteursrecht in de infomatiemaatschappj- Bouwstenen voor een Justitie trategie(Ministerievan Justtie Den Haag 2002) 14 Copyright Committee, Report 2001(no 23)
GROSHEIDE 214 In its advice, the Copyright Committee has used some general points of departure on the basis of which it has developed the specific parts of the advice. Firstly, the Committee sought to retain, where possible, the text and the system of the current 1912 Copyright Act. For the large part, this concerns ‘open’ terms that have stood the test of time. In this context, the Committee has put forward proposals to formulate the legislation in this field, preferably in a technology-neutral (or media -neutral) manner. On the other hand, the Committee has tried to keep up with the technology used in the Copyright Directive, along the lines of Instruction 56 of the Instructions for Rules and Regulations. After all, it must be prevented that the result of the Directive will be that the frameworks of terms in force in the laws and regulations of the Member States will diverge even more than they do already, while the intended objective of the Directive is harmonization. In addition, the Committee is of the opinion that no unnecessary amendments must be made in the context of the implementation.The Committee therefore recommends that the exploitation rights remain intact insofar as this is possible. The Committee also advises that the existing exemptions should be retained, at least where this is allowed by the Directive. This aspect is examined in further detail under 2.4.1314 Rejecting the notion of as well as the need for a fundamental revision of the existing Dutch Copyright Act (DCA) (e.g. combining it with the Neighbouring Rights Act (NRA)) the committee has retained to its previous advice in which it was of the opinion that the existing two- tier approach under the DCA, providing the copyright owner with the reproduction right (verveelvoudigingsrecht) and the publication right (openbaarmakingsrecht) sufficient in order to cope with the three tier approach of the WCT and the CHD, providing for a reproduction right, a right of communication to the public, and a distribution right. Some other views by the Commissie Auteursrecht taken with regard to specific issues such as fair compensation, limitations, protection against the circumvention of technological measures, and obligations with respect to information on rights Deventer 1989); D.J.G. Visser, Auteursrecht op toegang (Vuga Den Haag 1997). - monographs F.W. Grosheide, Paradigims in Copyright Law, in Brad Sherman, Alain Ströwel, Of Authors and Origins ( ClarendonPress Oxford 1994), pp. 204-233; idem, Toegang tot informatie, in F.W. Grosheide, Communicatie- en Mediarecht (Ars Aequi Libri 2000), pp. 213-264; Egbert Dommering a.o., Informatierecht (Otto Cramwinckel Amsterdam 2000); P.B. Hugenholtz, The future of copyright in a digital environment (Kluwer Law International The Hague, London, Boston 1996) - articles There are abundant of articles dealing with the subject at issue. They are mainly published in specialised legal journals such as AMI (formerly Informatierecht/AMI); IER; Mediaforum. 13. Copyright Committee, Advice concerning Copyright, Neighbouring Rights and New Media (The Hague 1998); Copyright Committee, Advise on the Implementation of the EC Directive copyright and related rights in the information society (The Hague 2001), also admissible on www.minjust.nl/a_beleid/auteurswet/uk/. On this website can also been consulted text in the English language of legislation inforce on copyright law and related law. See also E.J. Arkenbout, E. van Dijk, P.W. van Wijck, Auteursrecht in de informatiemaatschappij – Bouwstenen voor een Justitie strategie (Ministerie van Justitie Den Haag 2002). 14. Copyright Committee, Report 2001 (no 23)
COPYRIGHT ISSUES ANDTHEINFORMATION SOCIETY management, will be taken into account in this paper in Sections 2 and 3 It is of note that a proposal for implementation legislation was recently drafted and this is largely based on the 2001 report of the Commissie Auteursrecht. 5 In accordance with the report by the Comm issie Auteursrecht no specal attention will be given in this paper to the legal status of public data in view of copy right law and related law. It suffices to mention here that the dutch government takes the view at publicly gathered and held data should be freely(i.e. against production costs) availa ble to the public and should not in any way be commercia lised by public authorities 16 1.2 New informationalworks and the Internet 12.1 The inherent poperty of the new computer technology to provide information in a digital fom has placed a stra in on the function ing copyright law and reated aw in two respects. First, in reaction to the need of the day, ie the need for exclusive right protection of the computer programsand chips industry, digitising per se became an issue of concern for the intellectual property community, Focusing primarily on copyright protection for com puter programs and sui generis protection for chips, the outcome of that deba te is well known and has been extensively documented; it does not have to be repeated here. 7 It suffices here to recall that on a worldwide basis the courts first and national and intemational legislators second, overruled arguments holding that computer programs(and chips) would be better protected by the technology-related regime of patent law. That discussion has got momentum again since the US recently introduced patent law protection for business fomats and the e. The question is also much debated nowadays in the EU. s Secondly, the digits ing of trad itional works such as texts, images and music and making them availa ble through new physical carriers such as CD Roms or through transmission over the Internet raises various questions with regard to the appropriateness of apply ing the existing legal i.e. copyright regime to them. Concepts and principles uch as the originality criterion, fair use or the exhaustion rule have to be reconsidered. They are the subject of a great deal of debate with regard to database protection and music distribution on-line. 19 With reference to the actual importance This proposal can be consulted on the website indicated in footnote 13. The proposal and the draft legislaton are much critsized by interesting parties such as Stichtng Autersrechtbe langen Commentaar November 2001)and het Neder lands Uitgevers Verbond( Copyright Notice 2001A pp.1727 J.J. C. Kabel, Communicatie Commerce (Kluwer Deventer 1997): F w. Grosheide Toegang tot informatie, referred to in footnote 12. The debate i well descr ibed from a Dutch perspective n Quaedvleg, referred b in footnote Seeeg H.W.AM. Hanneman, Over de octroobaarhed van methoden voor de bedrijfsvoering BIE20002pp.40-45 Placed in an intemational context and with appropriate source references the relevant ssues are discussed from a Dutch perspective n among others F w. Grosheide, Mass-market Expboitation of
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY 215 management, will be taken into account in this paper in Sections 2 and 3. It is of note that a proposal for implementation legislation was recently drafted and this is largely based on the 2001 report of the Commissie Auteursrecht.15 In accordance with the report by the Commissie Auteursrecht no special attention will be given in this paper to the legal status of public data in view of copyright law and related law. It suffices to mention here that the Dutch government takes the view that publicly gathered and held data should be freely (i.e. against production costs) available to the public and should not in any way be commercia lised by public authorities.16 1.2 New informational works and the Internet 1.2.1 General The inherent property of the new computer technology to provide information in a digital form has placed a strain on the functioning copyright law and related law in two respects. First, in reaction to the need of the day, i.e. the need for exclusive right protection of the computer programs and chips industry, digitising per se became an issue of concern for the intellectual property community, Focusing primarily on copyright protection for computer programs and sui generis protection for chips, the outcome of that debate is well known and has been extensively documented; it does not have to be repeated here.17 It suffices here to recall that on a worldwide basis the courts first and national and international legislators second, overruled arguments holding that computer programs (and chips) would be better protected by the technology-related regime of patent law. That discussion has got momentum again since the US recently introduced patent law protection for business formats and the like. The question is also much debated nowadays in the EU. 18 Secondly, the digitising of traditional works such as texts, images and music and making them available through new physical carriers such as CD Roms or through transmission over the Internet raises various questions with regard to the appropriateness of applying the existing legal i.e. copyright regime to them. Concepts and principles such as the originality criterion, fair use or the exhaustion rule have to be reconsidered. They are the subject of a great deal of debate with regard to database protection and music distribution on-line.19 With reference to the actual importance 15. This proposal can be consulted on the website indicated in footnote 13. The proposal and the draft legislation are much critisized by interesting parties such as Stichting Autersrechtbelangen (Commentaar November 2001) and het Nederlands Uitgevers Verbond (Copyright Notice 2001/4, pp. 17-27). 16. J.J.C. Kabel, Communicatie & Commercie (Kluwer Deventer 1997); F.W. Grosheide, Toegang tot informatie, referred to in footnote 12. 17. The debate is well described from a Dutch perspective in Quaedvlieg, referred to in footnote 12. 18. See e.g. H.W.A.M. Hanneman, Over de octrooibaarheid van methoden voor de bedrijfsvoering, BIE 2000/2, pp. 40-45. 19. Placed in an international context and with appropriate source references the relevant issues are discussed from a Dutch perspective in among others F.W. Grosheide, Mass-market Exploitation of
GROSHEIDE f both data base protection and music distribution on-line it seems appropriate devote somewhat more attention to these issues here Databases As far as database protection is concerned the following may be stated: for decades, aal protection should be given to databases has figure prom inently on the agenda of international and national govemmental and non-govermmental bodies 20 Since data bases are prone to full-scale misappropriation, a back of adequate legal protection could have a range of damaging effects on everyday life. Databases are subject to misappropriation because the information contained therein is highly vulnerable. Infomation, by its very nature, is ubiquitous, inexhaustible, and indivisible. As a consequence, the second use of some particular new infomation does not dim inish or exhaust it. Once disclosed to the public information can generally be used, ignoring contractual or tortious liability, without charge and without the da tabase prov iders perm ission orany obligation to reimburse him for his investment. This holds equally true for the off-line as well as the on-line market. Paradoxically, providing protection to one database provider creates a legal barrier for other potentally competing database providers attem pting to enter the market. This barrier is particularly effective in the case of sole source database producers. It becomes clear that the need for protection should be balanced against database industry that are at stake. Equally involved is the public interest in the dissem ination of culture and kwowledge in today's society requiring full access to all types of information. The above state of affairs demands a coherent and firm strategy by the governmental and non-governmental bodies in charge on both a national and international level. It is essential to realize that the legal protection of databases should not be dealt with in isolation, but should be seen as part of the legal protection of intellectual property rights in the Information Society in general Considering that databases have not always fitted within existing legal systems and leavingcontract law aside, there have been three ways in which to offer legal rotection:copyright law, unfa ir competition law, and sui generis law. In 1996, the EU finally adopted the EU Data base Directive. The Directive created a two-tier protection scheme for electronic and non-electronic databases. Member states are required to protect data bases by copyright as intellectual creations, or to provide a novel sui generis right in order to prevent the una uthorized extraction or reutilization of the contents of a database. The difference between the two is that copyright infringement implies copy ing the structure, while the sui generis right infringement implies copy ing the contents themselves, irrespective of their"copyrightability'.The Digital Information by the Use of Shrink-wrap and Clip-wrap Licenses, n F.w. Grosheide, K Boele-Woelki, Molengrafica 1998(Vemande Lelystad 1998) pp. 263-319, L. Guibault, Copyright Limitations and Contract(Kluwer Law International, The Hague, London, Boston 2002) See generally F.w. Grosheide, Database Protecton- The European Way, Washington University Joumal of Law and Pohcy, Vol 8(2002)(forthcoming, broadly discussing the eC Database Directive 96/9
GROSHEIDE 216 of both database protection and music distribution on-line it seems appropriate to devote somewhat more attention to these issues here. Databases As far as database protection is concerned the following may be stated: for decades, the question of what legal protection should be given to databases has figured prominently on the agenda of international and national governmental and non-governmental bodies.20 Since databases are prone to full-scale misappropriation, a lack of adequate legal protection could have a range of damaging effects on everyday life. Databases a re subject to misappropriation because the information contained therein is highly vulnerable. Information, by its very nature, is ubiquitous, inexhaustible, and indivisible. As a consequence, the second use of some particular new information does not diminish or exhaust it. Once disclosed to the public, information can generally be used, ignoring contractual or tortious liability, without charge and without the database provider’s permission or any obligation to reimburse him for his investment. This holds equally true for the off-line as well as the on-line market. Paradoxically, providing protection to one database provider creates a legal barrier for other potentially competing database providers attempting to enter the market. This barrier is particula rly effective in the case of sole source database producers. It becomes clear that the need for protection should be balanced against the need for competition. However, it is not only the particular interests of the database industry that are at stake. Equally involved is the public interest in the dissemination of culture and kwowledge in today’s society requiring full access to all types of information. The above state of affairs demands a coherent and firm strategy by the governmental and non-governmental bodies in charge on both a national and international level. It is essential to realize that the legal protection of databases should not be dealt with in isolation, but should be seen as part of the legal protection of intellectual property rights in the Information Society in general. Considering that databases have not always fitted within existing legal systems and leavingcontract law aside, there have been three ways in which to offer legal protection: copyright law, unfair competition law, and sui generis law. In 1996, the EU finally adopted the EU Database Directive. The Directive created a two-tier protection scheme for electronic and non-electronic databases. Member states are required to protect databases by copyright as intellectual creations, or to provide a novel sui generis right in order to prevent the unauthorized extraction or reutilization of the contents of a database. The difference between the two is that copyright infringement implies copying the structure, while the sui generis right infringement implies copying the contents themselves, irrespective of their ‘copyrightability’. The Digital Information by the Use of Shrink-wrap and Clip-wrap Licenses, in F.W. Grosheide, K. Boele-Woelki, Molengrafica 1998 (Vermande Lelystad 1998), pp. 263-319, L. Guibault, Copyright Limitations and Contract (Kluwer Law International, The Hague, London,Boston 2002). 20. See generally F.W. Grosheide, Database Protection – The European Way, Washington University Journal of Law and Policy, Vol. 8 (2002) (forthcoming), broadly discussing the EC Database Directive 96/9
COPYRIGHT ISSUES ANDTHEINFORMATION SOCIETY notion of ones own intellectual creation serves as a criterion for the determination of the object of protection under copyright law. No database is copyrightable if its structure does not reflect the author 's own intellectual creation of its author It is sa id that this notion, which in its terminology differs from expressions like originality, personal stamp, and the like mainly used to indicate the threshold of the protection has taken from the French Pachot case 2 1 According to Article 7(1), the sui generis protection only applies if the producer of a database has made a qualitatively or quantitatively substantal investment. This limited application seems to illustra te that the sui generis right solely protects the investment, for example, sweat of the brow Recitals 39 and 40 also seem to express this view From a conceptual point of view, It may be more accurate to say that the investment as incorpora ted in a database is protected. However, when it comes to substantiating the amount of investment required in order to obta in sui generis protection, the Directive offers little guidance Indeed, it seems to be presumable that in order to keep in line with the prev iously existing thin copyright protection in some European countries, a relatively low investment threshold may suffice. But assum ing that a more or less abstract statutory definition is not possible, setting the terms is up to the courts. Recently, some ational courts in the eu mem ber sta tes have been asked to address the issue of what constitutes a substantal investment. In doing so, the courts are also faced with another factor indicated in Article 7(1), that is that the substantal investment must be expended in either the obtaining, verification, or presentation of the contents of the It is clear that the two-tier system of protection which the Directive introduces derives its significance from the new sui generis right, since most data bases will not be eligible for copyright protection, no matter how low the standard of originality may be. However, it is quite possible that both copyright and the sui generis right will simultaneously apply. In that case, both rights will run and can be exploited independently. If one copies or distributes the contents of such a double protected database without the consent of the copy right owner, the copyright owner can, in these circumstances, instigate legal proceedings for copyright and sui generis right Music distribution on-lt Next comes music distribution on-line. 23 From a legal point of view musical works Cass, ass plen. Mar. 7, 1986, JCP 86, Il, 20631 Comp. Michae Lehman, The European Database Directive and Its Implementation into German Law, IIC776, 776.93(1998)(stating"Ithi specification of a Europe-wide ' standard of orignality alsoserves to harmonize copyright m the EU since certain countries will beobliged torase their req uirements forprotection, such as Holland and the United Kingdom, white others will generally have to be lowered, such as in Germany); see for an appraisal of the new originality criterion n the context of the Computer Program Directive. Report from the commission to the council the European Parlament and the Economic and Social Committee on the Implementation and Effects ofDirective 91/EEC(2000)199 final (Apr. 10, 2000). See for an account of such court decisions grosheide referred to in footnote 20 23. See for an overviewof the state of affairs per ultimo 2001 F.w. Grosheide, Is the Approprate EU Legal Framework in Place for Music Online? IIC 2002/(forthcoming) 217
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY 217 notion of one’s own intellectual creation serves as a criterion for the determination of the object of protection under copyright law. No database is copyrightable if its structure does not reflect the author’s own intellectual creation of its author. It is said that this notion, which in its terminology differs from expressions like originality, personal stamp, and the like mainly used to indicate the threshold of the protection, has taken from the French Pachot case.211 According to Article 7 (1), the sui generis protection only applies if the producer of a database has made a qualitatively or quantitatively substantial investment. This limited application seems to illustrate that the sui generis right solely protects the investment, for example, sweat of the brow. Recitals 39 and 40 also seem to express this view. From a conceptual point of view, it may be more accurate to say that the investment as incorpora ted in a database is protected. However, when it comes to substantiating the amount of investment required in order to obtain sui generis protection, the Directive offers little guidance. Indeed, it seems to be presumable that in order to keep in line with the previously existing thin copyright protection in some European countries, a relatively low investment threshold may suffice. But assuming that a more or less abstract statutory definition is not possible, setting the terms is up to the courts. Recently, some national courts in the EU member states have been asked to address the issue of what constitutes a substantial investment. In doing so, the courts are also faced with another factor indicated in Article 7(1),that is that the substantial investment must be expended in either the obtaining, verification, or presentation of the contents of the database.22 It is clear that the two-tier system of protection which the Directive introduces derives its significance from the new sui generis right, since most databases will not be eligible for copyright protection, no matter how low the standard of originality may be. However, it is quite possible that both copyright and the sui generis right will simultaneously apply. In that case, both rights will run and can be exploited independently. If one copies or distributes the contents of such a double protected database without the consent of the copyright owner, the copyright owner can, in these circumstances, instigate legal proceedings for copyright and sui generis right infringement. Music distribution on-line Next comes music distribution on-line.23 From a legal point of view musical works 21. Cass.ass.plén. Mar. 7, 1986, JCP 86, II, 20631 Comp. Michael Lehman, The European Database Directive and Its Implementation into German Law, IIC 776, 776-93 (1998) (stating “[t]his specification of a Europe-wide ‘standard of originality’ also serves to harmonize copyright in the EU since certain countries will be obliged to raise their requirements for protection, such as Holland and the United Kingdom, white others will generally have to be lowered, such as in Germany”); see for an appraisal of the new originality criterion in the context of the Computer Program Directive. Report from the commission to the council, the European Parliament and the Economic and Social Committee on the Implementation and Effects of Directive 91/EEC (2000) 199 final (Apr. 10, 2000). 22. See for an account of such court decisions Grosheide referred to in footnote 20. 23. See for an overview of the state of affairs per ultimo 2001 F.W. Grosheide, Is the Appropriate EU Legal Framework in Place for Music Online? IIC 2002/ (forthcoming)
GROSHEIDE have been protected by copyright law ever since the establishment of modern intellectual property bw at the end of the 19th century and the national and international recognition thereof(in the Great Conventions of 1883 and 1886) Copyright law grants the rightowners in musical works, e ither fixed in print or on a ound recording, as well as their perfomances, prerogatives with regard to reproduction, distribution and communication to the public. Similar prerogatives are today granted to the performers of musical works(Rome Convention 1961). Such prerogatives nevertheless have to be exercised with due regard to the exceptions and limitations set by the aw in view of the interests of society at large. Obv iously the indicated prerogatives were developed in a historic perspective for the off-line world successively for sheet music, gramophone records, and radio transmissions. As long as the developments in this respect concemed modernization and adaptation of existing ana bg technologies(e.g long-playing sound recordings, television), some stretching of the established legal framework sufficed in order to cope with those new developments However, things changed considera bly from the moment when computer technology began to spread, particularly from the moment that the Internet became the main vehicle for on-line music distribution. Indeed. distribution of music on-line is one of those new transactions which can be executed entirely by electronic means through the Internet. Not surprisingly, such distribution has increasingly become a major part of so-called electronic commerce. Understandably, music distribution on- line is of only ones who have an interest in this distribution. This equally applies to the new dotcoms that prov ide intemediary distribution services, to consumers and not least to musicians and performers. However, the interests of those involved do not coincide in every respect. As a consequence, legislators and courts both on an international and national level are challenged to balance the interests at stake by providing, on the one hand, sufficient legal protection to copyright owners of music for the legitimate exploitation of their vulnerable digital products, while on the other hand ensuring that particularly consumers, i.e. society at large, haveapproprate rules to access these products. It may be said that until recently the music industry has failed to serve the need for tailor-made music distribution on-line at reasona ble prices This factor, together with an ideologically inspired view of Internet music distribution that confronts the monopolistic approach of the big producers, has resulted in the advent of a host of alternative dotcom music distributors It is notably this development in connection with the introduction of a new technology known as MP3 and the way in which it changed the on-line distribution of musical works that shook the foundations upon which the record industry had traditionally controlled the distribution of music. MP3 technology and related technologies are altering the way in which composers and performers release the work, the way record companies sell it, and the way the public consumes it. Legally speaking, the MP3 technology has given rise to serious controversy with regard to the application of the traditional legal framework to the distribution and consumption of musical works in the internet environment. On the one side. the esta blished industry is arguing that many MP3 distribution sites are purely illegal, the music being uploaded for unlimited use, and distributed by intemedaries and downloaded by consumers who do not pay the royalties due for such use. Allowing MP
GROSHEIDE 218 have been protected by copyright law ever since the establishment of modern intellectual property law at the end of the 19th century and the national and international recognition thereof(in the Great Conventions of 1883 and 1886). Copyright law grants the rightowners in musical works, either fixed in print or on a sound recording, as well as their performances, prerogatives with regard to reproduction, distribution and communication to the public. Similar prerogatives are today granted to the performers of musical works (Rome Convention 1961). Such prerogatives nevertheless have to be exercised with due regard to the exceptions and limitations set by the law in view of the interests of society at large. Obviously the indicated prerogatives were developed in a historic perspective for the off-line world successively for sheet music, gramophone records, and radio transmissions. As long as the developments in this respect concerned modernization and adaptation of existing analog technologies (e.g. long-playing sound recordings, television), some ‘stretching’ of the established legal framework sufficed in order to cope with those new developments. However, things changed considerably from the moment when computer technology began to spread, particularly from the moment that the Internet became the main vehicle for on-line music distribution. Indeed, distribution of music on-line is one of those new transactions which can be executed entirely by electronic means through the Internet. Not surprisingly, such distribution has increasingly become a major part of so-called electronic commerce. Understandably, music distribution on-line is of vital interest to the established music industry. Yet the record companies are not the only ones who have an interest in this distribution. This equally applies to the new dotcoms that provide intermediary distribution services, to consumers and not least to musicians and performers. However, the interests of those involved do not coincide in every respect. As a consequence, legislators and courts both on an international and national level are challenged to balance the interests at stake by providing, on the one hand, sufficient legal protection to copyright owners of music for the legitimate exploitation of their vulnerable digital products, while on the other hand ensuring that particularly consumers, i.e. society at large, have appropriate rules to access these products. It may be said that until recently the music industry has failed to serve the need for tailor-made music distribution on-line at reasonable prices. This factor, together with an ideologically inspired view of Internet music distribution that confronts the monopolistic approach of the big producers, has resulted in the advent of a host of alternative dotcom music distributors. It is notably this development in connection with the introduction of a new technology known as MP3 and the way in which it changed the on-line distribution of musical works that shook the foundations upon which the record industry had traditionally controlled the distribution of music. MP3 technology and related technologies are altering the way in which composers and performers release their work, the way record companies sell it, and the way the public consumes it. Legally speaking, the MP3 technology has given rise to serious controversy with regard to the application of the traditional legal framework to the distribution and consumption of musical works in the Internet environment. On the one side, the established industry is arguing that many MP3 distribution sites are purely illegal, the music being uploaded for unlimited use, and distributed by intermediaries and downloaded by consumers who do not pay the royalties due for such use. Allowing MP3
COPYRIGHT ISSUES ANDTHEINFORMATION SOCIETY technology, theargument goes, will destroy the record industry, since it will undercut the profits of all involved by backing music piracy. On the other side, one finds independent musicans and others running dotcom com panies, and in particula indiv idual consumers who see the Intemet as a possibility for offering and sharing music. This promotes what is called a more democratic digital music distribution system and takes a stand that is directly opposite to what is considered to be a monopolistic and price- manipulating industry. In particular this side protests and rejects the unwill ingness of the major record companies to agree to discuss licensing their back catalogues to dotcom on-line electronic music distributors. Besides, todays consumers have high expectations of the benefits they will receive from on-line access to content. Things have become even more complicated since established and newly set up broadcasting organisations have started using MP3 technology fora new form of broadcasting which is called streaming(-audio) It is precisely the described state of affairs that inspired national and intemational legislators to take action on behalf of copyright owners and rehted right holders, leading to the strengthening of the available protective legal instruments such as a broader reproduction right and a specific communication to the public right. However, it appeared that the strengthening of exclusive rights alone was not sufficient in order to discipline what from a rights holders' perspective was and is seen as infringing free rides. This is due to the fact that in the Internet environment content is rarely, if ever, distributed directly from the rightowners to the end-users Usually, a whole range of hosting providers act as middlemen. It ra ises the question of the legal position of these intermediaries, genera lly known as the question ofon-line intermedary liability. Since this question lies at the hart of electronic commerce it is dealt with in the context of drafting new legal instruments for that purpose such as the US DMCa and the EU E-commerce Directive. In accordance with most of the already existing national case law, the US and EU legislators have chosen to exem pt access and network providers from liability for the damage done to Copyright and other rightholders with regard to copyrighted and otherwise legally protected materials(the mere conduit principle). Liability may, however, apply in cases in which the service provider knows of or rea sonably ought to have known(e.g after having notice from a rightowner) of any infringing information being passed through its service. In doing so, the promotion of e-commerce and freedom of communication have been given priority over the protection of rightholders. 24 Search engines, webpages and hyperlinks The first step taken has been to protect software and chips through ip regimes. Not surprisingly, in the slipstream thereof other technologically determined devices such as search engines, webpages, hyperlinks(and metatags)have been offered for protection under the same regimes. Although the developments in this respect are far from clear both on a national and on an intemational level and lack ing any international legal instruments, some tentative observations with regard to emerging 24. See for an overview of this devebopment Kamiel Koelman, On-line Intermediary Lability, n Hugenholtz, Copyright and Electronic Commerce, referred to in footnote 8 pp. 7-57, coming to terms with EC Directive 200031 on electronic commerce 219
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY 219 technology, the argument goes, will destroy the record industry, since it will undercut the profits of all involved by backing music piracy. On the other side, one finds independent musicians and others running dotcom companies, and in particular individual consumers who see the Internet as a possibility for offering and sharing music. This promotes what is called a more democratic digital music distribution system and takes a stand that is directly opposite to what is considered to be a monopolistic and price-manipulating industry. In particular this side protests and rejects the unwillingness of the major record companies to agree to discuss licensing their back catalogues to dotcom on-line electronic music distributors. Besides, today’s consumers have high expectations of the benefits they will receive from on-line access to content. Things have become even more complicated since established and newly set up broadcasting organisations have started using MP3 technology for a new form of broadcasting which is called streaming(-audio). It is precisely the described state of affairs that inspired national and international legislators to take action on behalf of copyright owners and related right holders, leading to the strengthening of the available protective legal instruments such as a broader reproduction right and a specific communication to the public right. However, it appeared that the strengthening of exclusive rights alone was not sufficient in order to discipline what from a rights holders’ perspective was and is seen as infringing free rides. This is due to the fact that in the Internet environment content is rarely, if ever, distributed directly from the rightowners to the end-users. Usually, a whole range of hosting providers act as middlemen. It raises the question of the legal position of these intermediaries, generally known as the question ofon-line intermediary liability. Since this question lies at the hart of electronic commerce it is dealt with in the context of drafting new legal instruments for that purpose such as the US DMCA and the EU E-commerce Directive. In accordance with most of the already existing national case law, the US and EU legislators have chosen to exempt access and network providers from liability for the damage done to Copyright and other rightholders with regard to copyrighted and otherwise legally protected materials (the mere conduit principle). Liability may, however, apply in cases in which the service provider knows of or reasonably ought to have known (e.g after having notice from a rightowner) of any infringing information being passed through its service. In doing so, the promotion of e-commerce and freedom of communication have been given priority over the protection of rightholders.24 Search engines, webpages and hyperlinks The first step taken has been to protect software and chips through ip regimes. Not surprisingly, in the slipstream thereof other technologically determined devices such as search engines, webpages, hyperlinks (and metatags) have been offered for protection under the same regimes. Although the developments in this respect are far from clear both on a national and on an international level and lacking any international legal instruments, some tentative observations with regard to emerging 24. See for an overview of this development Kamiel Koelman, On-line Intermediary Liability, in Hugenholtz, Copyright and Electronic Commerce, referred to in footnote 8 pp. 7-57, coming to terms with EC Directive 2000/31 on electronic commerce
GROSHEIDE tendencies may be made With regard to webpages it may be said that their copyrightability depends on compliance with existing copyright law requirements such as, in particular, the inality criterion. So the combination of text, image and music that, generally speaking, is at stake here, should itself comply, as well as with regard to its components, with the applicable copyright rules he question of the copyrightability of search engines, hyperlinks(and meta tags)has to be answered according to the requirements for the copyright protection of software a given national jurisdiction. However, published case law in this respect mainly concems the use of one's own hyperlink in order to obtain access to anothers copyright protected infomation. Well known is the Scottish case Shetland Times v Shetland News. 26 In that case a news service(Shetland News)made use of headings and captions applied by a publication(The Shetland Tmes) to its articles as hyperlinks in order to guide its customers to the respective articles in that publication As a consequence of this so-called deep-linking the impression was created that the news serv ice and The Shetland Times were partners in some way oranother. Under ne circumstances The Shetland News was ordered to shut down the hyperlinks. It may be said that the decision is based upon a form of tortious liability, not on copyright infringement. Shetland News did not reproduce or communicate materal of which the Shetland Times was the copyright owner The same seems mutatis mutandis to be true for search engines and meta tags Multimedia works A final observation should be made with regard to whether a new exclusive rights regime should be established for multimeda works. Again this is a very uncerta area where different and sometimes conflicting approaches and opinions are presented.27 Many questions have to be answered here, such as: can we still speak of the authorof a work when ta king into account of the fact that many people contribute to the making ofa multimeda work? what does the dissolution of the work(concept) into smaller and smaller units means for the notion origina lity? In addition the question arises whether the applicable legal regime for multimedia works would onsist of a system of concurring sub-regimes, e.g. one for text, one for images, one formusic etc or would be tailor-made 1.2.2 The Netherlands Generally speaking, the Netherlands follows the internationa l developments both in Its legislation and its case law Marjut Salokannel, Ownership of Rights in Audiov sual Productions-A Comparative Study ( Kluwer Law International, The Hague, London, Boston) 6. Scotland Courtof Session(Opnionoflord Hamilton)24 October 1999, S.C. L R 160 27 See generally Marjut Salo Kann 220
GROSHEIDE 220 tendencies may be made. With regard to webpages it may be said that their copyrightability depends on compliance with existing copyright law requirements such as, in particula r, the originality criterion. So the combination of text, image and music that, generally speaking, is at stake here, should itself comply, as well as with regard to its components, with the applicable copyright rules.25 The question of the copyrightability of search engines, hyperlinks (and metatags) has to be answered according to the requirements for the copyright protection of software in a given national jurisdiction. However, published case law in this respect mainly concerns the use of one’s own hyperlink in order to obtain access to another’s copyright protected information. Well known is the Scottish case Shetland Times v. Shetland News. 26 In that case a news service (Shetland News) made use of headings and captions applied by a publication (The Shetland Times) to its articles as hyperlinks in order to guide its customers to the respective articles in that publication. As a consequence of this so-called deep-linking the impression was created that the news service and The Shetland Times were partners in some way or another. Under the circumstances The Shetland News was ordered to shut down the hyperlinks. It may be said that the decision is based upon a form of tortious liability, not on copyright infringement. Shetland News did not reproduce or communicate material of which the Shetland Times was the copyright owner. The same seems mutatis mutandis to be true for search engines and metatags. Multimedia works A final observation should be made with regard to whether a new exclusive rights regime should be established for multimedia works. Again this is a very uncertain area where different and sometimes conflicting approaches and opinions are presented.27 Many questions have to be answered here, such as: can we still speak of the author of a work when taking into account of the fact that many people contribute to the making of a multimedia work? what does the dissolution of the work (concept) into smaller and smaller units means for the notion originality? In addition the question arises whether the applicable legal regime for multimedia works would consist of a system of concurring sub-regimes, e.g. one for text, one for images, one for music etc. or would be tailor-made. 1.2.2 The Netherlands Generally speaking, the Netherlands follows the internationa l developments both in its legislation and its case law. 25. Marjut Salokannel, Ownership of Rights in Audiovisual Productions – A Comparative Study (Kluwer Law International, The Hague, London, Boston). 26. Scotland Court of Session (Opinion of Lord Hamilton) 24 October 1999, S.C.L.R. 160. 27. See generally Marjut Salo Kannel, referred to in footnote 25
