Article 12 of the Copyright Act lists a number of acts that fall within the definition of 'disclosure to the public'. In addition to the more straightforward cases of disclosure, Article 12(1)(2) specifically stipulates that disclosure also includes verbreiding (translated in English as 'spreading') all or part of a work or a reproduction thereof where the work has not yet appeared in print. Although there is little case law on the act of spreading, the subject was recently debated in an Amsterdam Court of Appeal case.
The Supreme Court recently issued a long-awaited decision on an architect's moral rights of paternity and integrity. In recent years, several Dutch judgments have considered whether architects can oppose changes to their original building designs. The Supreme Court's decision further clarifies that it is difficult for architects to do so where the changes are necessary to alter a building's function.
A recent interlocutory judgment on assessing the real risk of market partitioning in an unauthorised parallel import case examined the rationale for reversing the burden of proof and whether the risk of partitioning assessment should take place retroactively or not. Rights holders will welcome the judgment because of the high standard it sets for what evidence qualifies as proof of a real risk of market partitioning.
The Supreme Court has referred another question to the European Court of Justice regarding 'communication to the public' as defined by the EU Infosoc Directive. The referral concerns a dispute between anti-piracy association the BREIN Foundation and two internet service providers hosting the notorious online index of digital content, The Pirate Bay.
The relationship between hyperlinking and copyright has been the subject of various court judgments. The outcome of such cases depends on the accessibility of the content, whether the content was uploaded lawfully, whether the link qualifies as a communication to the public and whether the rights holder's permission was obtained. Dutch courts recently made two new references to the European Court of Justice on this issue.
The new Copyright Contract Law was recently inserted into the Copyright Act 1912. The amendment aims to strengthen the position of authors, particularly in relation to parties which exploit their works (eg, publishers, film producers and record companies). The new law requires a signed deed in relation to exclusive licences, as well as introducing a section on exploitation contracts into the act.
The Amsterdam District Court recently decided that it was not authorised to grant permission to seize trademarks registered as a Community trademark before the Office for Harmonisation in the Internal Market (OHIM). The court argued that, as OHIM has its seat in Alicante, Spain (ie, outside the Netherlands), the trademarks were outside the court's remit and it therefore had no authority to grant permission for seizure.
In a case examining whether Dutch football club AFC Ajax's trademarks in its club strip were infringed, the Supreme Court has held that the appeal court failed to carry out a full assessment of the similarity of the marks. Such an assessment of the likelihood of confusion may be skipped only where there is no similarity between the earlier mark and the challenged mark.
The recent case of Ryanair v PR Aviation concerned the collection of information that did not meet the specific requirements for database protection under the EU Database Directive. This raises the question of whether a database owner should seek to avoid qualifying for protection under the directive - for example, by downplaying the investments or the creative choices it has made in creating the database.