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1. Author-Protective Rules and Alternative Licences: A Review of
the Dutch Copyright Contract Act
Thomas Dysart 1
[1] Introduction:
On the 12th
of February 2015, the Dutch House of Representatives adopted
the Copyright Contract Act (‘CCA’).2
The law, which at the time of writing is
pending approval by the Dutch Senate,3
introduces a number of author-protective
rules on copyright contracts into the Dutch Copyright Act (‘DCA’). According to
observers, the new statutory provisions will have “profound consequences” for
contractual practices in Dutch copyright-based industries.4
This article gives an
overview of the potential effects that the CCA may have on Free and Open Source
Software (‘FOSS’) and Creative Commons (‘CC’) licensing models as alternative
models of copyright exploitation. Given that FOSS and CC licensing models
flourish as the result of the parties’ freedom to contract, the extent to which these
models may be adversely affected through the imposition of mandatory provisions
as found in the CCA is an important question to consider and one which is all too
easily overshadowed by the assumption that author-protective rules, by their very
nature, are universally beneficial for all authors.
[2] FOSS and CC Licences:
FOSS and CC licences enable authors to make their copyrighted works
publicly available under terms that permit the reproduction, modification and
redistribution of the work by any recipient licensee. While the licences are
typically made available free of charge, some of the more ‘restrictive’ variations
make the licence grant conditional upon the licensee’s adherence to certain
1
Thomas Dysart is a DPhil student at the University of Oxford and a member of the Oxford
Intellectual Property Research Centre (OIPRC) <thomas.dysart@spc.ox.ac.uk>. This work is the
pre-edited version of a comment for the European Intellectual Property Review (forthcoming
2015). Many thanks to Professor Dirk Visser for his assistance with the Dutch legislation.
2
Amendments to the Copyright Act and the related rights in the context of enhancing the
position of authors and performing artists in contracts for copyright and neighbouring rights
(Copyright Contract Act) No. 33 308. For an English translation of the Bill, see Visser, Schaap &
Kreijger, Copyright Contract Act (2015) available at
<http://www.ipmc.nl/en/file/38/download?token=hKfqvTIf> (last accessed 24.03.15)
3
It is anticipated that the Act will have entered into force by the 1
st
of July 2015. However, if this
deadline has not been met, the Act will enter into force on the 1
st
of January 2016.
4
Visser, Schaap & Kreijger, New Copyright Contract Law in the Netherlands (March, 2015)
available at <http://www.ipmc.nl/en/topics/new-copyright-contract-law-netherlands> (last
accessed 24.03.15)

2. obligations.5
Whereas FOSS licences are used almost exclusively in relation to
software, CC licences are used for a wide range of content; e.g. music, images,
literature and film.6
Underlying both is a vision of copyright that places
importance on the values of inclusivity and freedom, often contrasted to the
exclusive and restrictive nature of traditional or ‘proprietary’ modes of copyright
exploitation.7
Both FOSS and CC licensing models facilitate significant value
creation across an incredibly diverse range of industries, although FOSS has
demonstrated particular commercial success with regard to information
communication technologies (ICT) and embedded devices.8
Under Dutch law, FOSS and CC licences are construed as contracts.9
While questions over their legal nature has been a source of past (and present)
controversy for a number of common law jurisdictions,10
due in large part to the
difficulties presented by the common law concept of consideration,11
Dutch law,
like many other civilian jurisdictions, has encountered little difficulty in holding
the licences to be contracts.12
It follows from this finding that the licences fall
5
These conditions differ depending on the relevant licence. Where present, they typically require
licensees to give attribution to authors, to preserve all relevant copyright notices, and to
distribute any derivative works subject to the terms of the same licence. For a taxonomical
o er ie of li e e ategories a d li e sees o ligatio s, see L. M Do agh, Copyright,
Contract, and FOSS i “he to & Walde , Free and Open Source Software: Policy Law and
Practice (Oxford University Press, 2015).
6
Creative Commons, About, available at <http://creativecommons.org/about> (last accessed
24.03.15)
7
This view is embodied in the prea le to the GNU Ge eral Pu li Li e e s (GPL), one of the
most widely used FOSS licences: The li e ses for ost soft are a d other pra ti al orks are
designed to take away your freedom to share and change the works. By contrast, the GNU
General Public License is intended to guarantee your freedom to share and change all versions
of a program--to ake sure it re ai s free soft are for all its users. Free “oft are
Foundation, GNU General Public Licence, available at <www.gnu.org/licenses/gpl-3.0.html>
(last accessed 23.03.15)
8
For discussion on the economic impact of open-source software more generally, see Lerner and
Schankerman, The Comingled Code: Open Source and Economic Development (MIT, 2010).
9
L. Guibault & O. van Daalen, Unravelling the Myth Around Open Source Licences: An Analysis
from a Dutch and European Perspective (TMC Asser Press, The Hague, 2006) at Chapter 4; See
also, Da ers & a Kerk oorde , The Netherla ds i The International Free and Open
“ource “oft are La Book (Open Source Press GmbH, 2011) available at
<http://ifosslawbook.org/the-netherlands> (last accessed 22.03.15)
10
A Guadamuz, Viral Contracts or Unenforceable Documents? Contractual Validity of Copyleft
Licenses (2004) 26 EIPR 8; S. Kumar, Enforcing the GNU GPL (2006) University of Illinois Journal
of Law, Technology and Policy 1; M. Henley, Jacobson v Katzer and Kamind Associates – An
English Legal Perspective (2009) 1(1) IFOSS L. Rev. 41; McGowan, D. Legal Implications of Open
Source Software (2001) U. Ill. L. Rev. 241; J.B. Wacha, Taking the Case: Is the GPL Enforceable
(2005) 21 Santa Clara Computer & High Tech. L. J. 451.
11
B. Gilles, Consideration and the Open Source Agreement (2002) 49 NSW Society for Computers
and Law, available at <http://www.nswscl.org.au/journal/49/Giles.html> (last accessed
24.03.15)

3. within the regulatory scope of the author-protective provisions introduced by the
CCA. The following examines the Act’s key provisions and the effects they are
likely to have on alternative licensing models.
[3] The Dutch Copyright Contract Act:
In 2012, the Dutch government proposed a bill to amend the DCA through the
introduction of special provisions on copyright contracts.13
The bill’s stated
objective was to strengthen the position of the authors and performing artists in
their contractual dealings with copyright.14
In determining the particular form of
implementation, the proposal looked to the author-protective rules found in the
copyright acts of neighbouring jurisdictions Belgium, France and Germany.15
Drawing upon the experiences of each, a number of concrete proposals were put
forward, with the German model being singled out as a particular source of
inspiration.16
The subsequent path to legislative tabling saw relatively little
substantive revision to the initial proposals. Thus, the finalised text of the CCA, as
adopted by the House of Representatives, pursues its author-protective objectives
through the introduction of the following key provisions:
(i) exclusive licences, in addition to whole or partial assignments, must be
effected by means of a written deed executed for that purpose;17
(ii) terms that are unreasonably onerous to the author or performing artist are
held to be voidable;18
12
In Germany, courts have held the GNU General Public Licence (GPL) to be a validly formed
contract – Welte v Sitecom (19 My 2004) No. 21 O 6123/04 (LG Munchen 1); and Welte v D-Link
(22 September 2006) No.2-6 O 224/06 (LG Frankfurt). Courts in France have reached a similar
conclusion – Educaffix c/CNRS, TGI Paris, 3ème chamber, 1ère section (28 Mars 2007). For a
multi-jurisdictional overview on the issue of contractual validity, see A. Metzger, General Report
to the International Congress of Comparative Law on License Contracts, Free Software and
Creative Commons (Forthcoming 2015)
13
Amendments to the Copyright Act and the related rights in the context of enhancing the
position of authors and performing artists in contracts for copyright and neighbouring rights
(Copyright Contract Act) Bill, Second House of Representatives, 2011-2012, 33 308, no. 2. (June
20 2012).
14
See Explanatory Memorandum, Second House of Representatives, 2011-2012, 33 308, no. 3.
(June 20 2012). See also, Letter from the Secretary of State for Security and Justice on Copyright
Policy, Second House of Representatives, 2010-2011, 29-838, no.29 (April 11 2011).
15
Explanatory Memorandum (n 14)
16
Ibid
17
DCA, a e ded Art. 2. Further ore, the a e ded Arti le 2 pro ides that assig e t or the
grant of an exclusive licence shall comprise only the rights that are stated in the deed or that
necessarily derive from the nature and purpose of the title or the grant of the li e e. See
Visser, Schaap & Kreijger (n 2)
18
DCA, (proposed) Art. 25f.

4. (iii) authors and performing artists may dissolve the copyright contract wholly
or in part where the other party does not sufficiently exploit the copyright
within a reasonable period;19
(iv) authors of short scientific works, the research for which has been funded in
whole or in part by public funds, can make the work available to the public
for no consideration (i.e. via Open Access) following a reasonable period
after first publication;20
(v) authors and performing artists are entitled to receive fair compensation for
the granting of exploitation rights;21
(vi) authors and performing artists are entitled to claim additional fair
compensation if the agreed compensation is seriously disproportionate to
the profit made from the exploitation of the work;22
(vii) the principal director, screenplay writer and lead actors of a film have the
right to receive proportional fair compensation for any communication of
the work to the public, with an exception for where the work is made
accessible to members of the public at a time and place individually
chosen by them (i.e. video-on-demand);23
(viii) authors and performing artists may not waive the provisions of the Act; 24
(ix) regardless of the law that governs the contract, the provisions shall apply
if: (a) the contract would have been governed by Dutch law in the absence
of a choice of law clause; or (b) the acts of exploitation of the work take
place or will take place wholly or predominantly within the Netherlands. 25
In discussing the potential effects on FOSS and CC models, these provisions
will be grouped into five roughly defined categories and assessed accordingly.
The categories headings are (a) requirements of form, (b) unreasonably onerous
terms, (c) reversion of rights and open access, (d) equitable remuneration, and (e)
mandatory rules and applicable law.
[3.1] Requirements of Form:
In accordance with the basic principle of freedom to contract, parties
contracting under Dutch law may, unless provided otherwise by law, choose the
19
DCA, (proposed) Art. 25e
20
DCA, (proposed) Art. 25fa
21
DCA, (proposed) Art. 25c
22
DCA, (proposed) Art. 25d
23
DCA, (proposed) Art. 45d
24
DCA, (proposed) Art. 25h
25
DCA, (proposed) Art. 25h

5. form of their agreement and method by which it is concluded.26
One of the few
author-protective rules that can be found in relation to copyright contracts under
the current DCA is Article 2 which provides that all assignments of copyright
must be effectuated by means of a deed (i.e. in written form and signed by the
author). In addition to its purely evidentiary function, the requirement under
Article 2 is intended to ensure authors have sufficient time to reflect upon their
decision to part with their economic rights and that all relevant information
pertaining to the transaction is presented to them in advance.27
With the
introduction of the CCA and its amendment of Article 2, this requirement of form
will now be applied to exclusive licences as well, the rationale being that
exclusive licences involve a similar degree of risk and opportunity cost for the
author. 28
With regard to FOSS and CC licensing, the introduction of this new
formal requirement for exclusive licenses will have little effect on current
practices. Generally speaking, FOSS and CC licensing models operate by way of
non-exclusive grants of rights to use.29
Thus, the question of whether FOSS and
CC licences are formally valid in accordance with Dutch law is addressed through
the application of general principles of contract (i.e. offer and acceptance). In this
regard, alternative licences are generally held to be valid and compatible.30
Looking to the broader environment in which FOSS and CC licensing
models are situated, one area in which the amendment of Article 2 may be of
significance is in relation to Contributor Agreements (often referred to as
‘CAs’).31
CAs are typically used by larger organisations or institutions as a means
26
L. Guibault & O. van Daalen, Unravelling the Myth Around Open Source Licences (n 9) Ch. 4
27
L. Guibault & B. Hugenholtz, Study on the Conditions Applicable to Contracts Relating to
Intellectual Property in the European Union, Study Contract No. ETD/2000/B5-3001/E/69, 2002,
pp. 30-31.
28
cf. 17 U.S.C. § 20 E e utio of tra sfers of op right o ership here tra sfer
encompasses both assignments and exclusive licences.
29
The ope -source philosophy necessitates a license which is non-exclusive in nature.
Accordingly, most licenses mention it to be so. However, certain licences like the BSD license,
GPLv2, and the Artistic License v.2.0 are silent on this point. Others are silent as regards some
of the intellectual property involved. For example, GPLv3 only mentions the non-exclusive
character as regards the patent grant but is silent about the copyright grant. The basic
assumption in cases where nothing is specified as to the character of the license is that they are
non-exclusi e. V.N. Vasude a, The Granting Clause and Intellectual Property Rights
Management in Open-Source Software Licensing (2013) IP Theory: Vol. 3: Iss. 2, Article 8, at
p.175. As for Creative Commons (CC), all licences include the following grant under Section
2(a)(1): “u je t to the ter s a d o ditio s of this Pu li Li e se, the Li e sor here gra ts
You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise
the Licensed Rights in the Licensed Material to: ( a) reproduce and Share the Licensed Material,
in whole or in part; and (b) produce, reproduce, and Share Adapted Material (emphasis
added .
30
L. Guibault & O. van Daalen, Unravelling the Myth Around Open Source Licences (n 7) Ch.4

6. of legally formalising the process by which works are contributed by individuals
to the entity overseeing a collaborative project.32
They are, in effect, standardised
agreements proposed by the party other than the author-contributor of the work
(i.e. project entity), requiring the contributor to assign or exclusively licence their
contribution on terms that, inter alia, set out the possible options for re-licensing
(i.e. the possible outbound FOSS or CC licences). The CAs also serve to protect
the project entity against third-party claims through, for example, warranties of
non-infringement.33
While Article 2 of the DCA in its current form requires all
CAs consisting of an assignment to be accompanied by a written deed,34
CAs
consisting of an exclusive licence currently fall outside its scope. With the CCA
extending this requirement of form to include the latter, project entities reliant on
such CAs will need to consider incorporating a request for written deeds into their
formal contribution process or risk such licenses being found invalid. Given the
concerns and controversy surrounding the use of CAs in the FOSS context,35
the
introduction of an author-protective rule of this nature appears to serve its
intended function by strengthening the position of individual contributors vis-à-vis
project entities and should thus be welcomed.
31
See C. Maracke, Editorial: Copyright Management for Open Collaborative Projects – Inbound
Licensing Models for Open Innovation (2013) 10:2 SCRIPTed 140, available at <http://script-
ed.org/?p=1059> (last accessed 23.03.15)
32
The Free Software Foundation Europe (FSF) offers a similar type of agreement known as the
Fidu iar Li e e Agree e t as a ea s of o e trate[i g] all de idi g po er ithi o e
entity and prevent[ing] fragmentation of rights on one hand, while on the other preventing that
single entity from abusing its power. “ee, Free “oft are Fou datio Europe, Fiduciary License
Agreement, available at <https://fsfe.org/activities/ftf/fla.en.html> (last accessed 19.03.15)
33
For detailed analysis on contributor agreements, see the following: T. Engelhardt, Drafting
Options for Contributor Agreements for Free and Open Source Software: Assignment,
(Non)Exclusive Licence and Legal Consequences. A Comparative Analysis of German and US Law
(2013) 10:2 SCRIPT-ed 149, available at <http://script-ed.org/?p=1061> (last accessed
23.03.15); A. Metzger, Internationalisation of FOSS Contributory Copyright Assignments and
Licenses: Jurisdiction-“pecific or U ported ? (2013) 10:2 SCRIPT-ed 177, available at
<http://script-ed.org/?p=1063> (last accessed 23.03.15); A. Guadamuz and A. Rens,
Comparative Analysis of Copyright Assignment and Licence formalities for Open Source
Contributor Agreements (2013) 10:2 SCRIPT-ed 207, available at <http://script-ed.org/?p=1065>
(last accessed 23.03.15).
34
A. Guadamuz and A. Rens (n 33) at p.211: When one looks at some of the most-used licences,
and at some popular projects, it becomes evident that the majority of contributory agreements
favour a strict formal approach, requiring an agreement in writing and signed in physical form.
This is because the agreements are treated as contracts between the contributor and the
project, and there is an assumption that contracts must comply with all of the necessary
for alities. […] There are a fe e eptio s to this rule.
35
R. Fontana, The Trouble With Harmony (Part 1) (Opensource.com, 7 July 2011) available at
<http://opensource.com/law/11/7/trouble-harmony-part-1> (last accessed 23.03.15); R.
Fontana, The Trouble With Harmony (Part 2) (Opensource,com, 11 July 2011) available at
<http://opensource.com/law/11/7/trouble-harmony-part-2> (last accessed 23.03.15).

7. [3.2] Unreasonably Onerous Terms:
In the Netherlands, while freedom of contract generally prevails, it is
standard practice for the law to provide protection with regard to contractual terms
that are deemed unfair or unreasonable, especially where there is a significant
imbalance in the bargaining power between parties (e.g. consumer contracts). At a
more general level, Dutch courts have the power to review contractual terms in
accordance with provisions found in the Dutch Civil Code, many of which give
effect to a number of European Directives dealing with consumer protection.
These provisions largely relate to standard form contracts and consumer
contracts,36
contracts concluded by electronic means,37
and contracts concluded at
a distance.38
Taken together, this body of law aims to protect parties who have not
had the ability to influence the negotiation, selection or drafting of terms – either
as a result of the terms being drafted in advance or as a result of the parties’ weak
position.
Introduction of a new Article 25f to the DCA appears to mirror the
underlying rationale behind the consumer protection provisions found in the DCC
by providing authors, as the parties typically in a weaker bargaining position, with
a legal safeguard against ‘unreasonably onerous’ terms.39
Article 25f will thus
play an important role in protecting authors who enter into pre-formulated
copyright contracts offered by commercial parties, i.e. publishers and other
commercial exploiters of works.
With regard to FOSS and CC licences, however, the provision is unlikely
to have any significant effect. Indeed, since authors can freely choose the terms on
which they make their work available under FOSS and CC licences (i.e. through
selecting the relevant licence suited to their personal preferences), it seems
illogical that such authors would require protection for ‘unreasonably onerous’
terms which they alone were responsible for adopting. However, looking again to
broader context and the role of Contributor Agreements (CAs) as discussed above,
36
See Articles 6:231 to 6:247 of the Dutch Civil Code. These provisions are mostly derived from
the European Directive on Unfair Terms in Consumer Contracts, 91/13/EEC, of April 5 1993, OJ L
95/29.
37
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain
legal aspects of information society services, in particular electronic commerce, OJ L 178
38
See Articles 7:46a et seq. of the Dutch Civil Code. These provisions implement Directive 97/7/EC
of the European Parliament and of the Council of 20 May 1997 on the protection of Consumers
in Respect of Distance Contracts, OJ L 144. N.B Certain provisions of the Dutch Civil Code based
on provisions of the Distance Contracts Directive have since been repealed and replaced
following the implementation of Directive 2011/83/EU of the European Parliament and of the
Council of 25 October 2011 on consumer rights, OJ L 304/64.
39
In addition, the proposed Article 25f paragraph 1 provides that a lause stipulati g rights to
the exploitation of future works of the [author] for an unreasonably long or insufficiently
deter i ate period shall e oida le. See Visser, Schaap & Kreijger (n 2)

8. where this type of standardised agreement is presented by a project entity to the
individual contributor, it would remain to be seen whether certain terms therein
may be held voidable under the new Article 25f for being ‘unreasonably onerous’
for the contributor.
[3.3] Reversion of Rights and Open Access:
The proposed Article 25e of the DCA will provide authors and performing
artists with a right to dissolve any copyright contract in whole or in part where the
other party does not “sufficiently exploit” the copyright within a ‘reasonable
period’.40
This type of provision is commonly referred to as a ‘reversion of rights’
provision as it allows for the rights to revert back to the author under specified
conditions.41
It should be noted that similar provisions on the reversion of rights
are currently in force in a number of European jurisdictions.42
In some
jurisdictions, the provisions apply generally to all forms of copyright contracts,
whereas in others they apply only in relation to specific types of copyright
contracts (e.g. publishing or film contracts).43
The time limits and procedures
according to which authors may exercise their claims to reversion differ between
jurisdictions.44
The rationale behind these provisions is to ensure that a transferred
copyright work is not underexploited by a transferee to the exclusion of uses or
exploitation that the author may wish to make otherwise.45
It is questionable the extent to which such a provision has any significance
with regard to copyright contracts for non-exclusive grants (i.e. FOSS and CC
40
The A t itself does ot pro ide a guida e o hat o stitutes suffi ie t e ploitatio , or
o hat o stitutes a reaso a le period. It should e oted that the provision is also
effective against third-parties. See, DCA, (proposed) Art. 25e paragraph 6 where it states that
if the other part has assig ed the op right to a third part , the the [author] a also
exercise the rights arising from the dissolution against that third party after having notified him,
in writing, of the dissolution as soon as possi le. See Visser, Schaap & Kreijger (n 2)
41
Nota l , the proposed Arti le 2 e pro ides that re ersio shall ot appl if the failure to
sufficiently exploit the copyright within this period is attributable to the author, or if the
interest of the other party to the contract in maintaining the contract is so compelling that,
a ordi g to sta dards of reaso a le ess a d fair ess, it out eighs the author s i terest i that
regard. See Visser, Schaap & Kreijger (n 2)
42
According to an EU-commissioned report on contracts applicable to creators, the following
European jurisdictions were found to have some form of right of reversion for copyright
contracts: Belgium, Germany, Hungary, Poland, Spain, Austria, Luxemburg, Nordic Countries
and Portugal. See Dusollier, Ker, Iglesias and Smits, Contractual Arrangements applicable to
creators: law and practice of selected Member States (Brussels, European Union, 2014) at p. 77.
43
Belgian Law on Copyright and Neighbouring Rights of June 30, 1994, as amended by Law of
April 2, 1995. Art. 26(1)
44
Dusollier et al (n 42) at p.77
45
M. Kretschmer, Copyright Ter ‘e ersio a d the Use it Or Lose It Pri ciple (April 2012)
International Journal of Music Business Research, Vol. 1, No. 1, 44

9. licences) as in these circumstances the effects of non-use by the licensee are
negligible. Assignments or exclusive licences made in accordance with a CA,
however, may be subject to dissolution under this new provision where the project
entity fails to sufficiently exploit the contribution within a reasonable period. This
may provide a valuable tool for contributors to collaborative projects that stall or
stagnate as a result of a lack of resources or contributors which in turn lead to the
under-exploitation of contributors’ works.
In addition to a general right to dissolve contracts, the CCA introduces
another provision which, instead of targeting under-exploitation, seeks to
encourage a more socially beneficial form of exploitation for certain types of
work. The provision in question achieves this by providing authors of short
scientific works, the research for which has been funded in whole or in part by
public funds, the ability to make the work available to the public for no
consideration (i.e. via Open Access) following a reasonable period after first
publication.46
While the provision is unlikely to directly affect existing FOSS and
CC licensing practices, it will undoubtedly have the indirect effect of encouraging
the use of alternative licences (CC in particular) as the means by which publicly-
funded scientific research is made available to the public. Furthermore, the
significance of the provision lies in the fact that it represents a conceptual shift in
the Dutch copyright regime towards the recognition of certain values shared by
FOSS and CC models, namely, those of openness and freedom.47
This conceptual
shift, although confined to a provision limited in scope and application, should not
be understated.
[3.4] Equitable Remuneration
Further significant changes can be found in the CCA’s provisions on
claims for fair compensation or, as it is otherwise known, equitable
remuneration.48
At present, Dutch copyright law provides only limited rights of
equitable remuneration for film producers,49
for the public lending of works as
46
DCA, (proposed) Art. 25fa. The provision is partly inspired by a similar provision in the German
Copyright Act which provides for a right for scientific works to be made available to the public
non-commercially after the expiry of 12 months provided certain conditions are met. See the
German Copyright Act, Art. 38 para 4. The provision also gives effect to the underlying rationale
found in the EU policy on access to and preservation of scientific information. See, Commission
recommendation on access to and preservation of scientific information, Brussels, 17.7.2012,
C(2012) 4890 final. For more detailed discussion on Art. 25fa, see Visser, The Open Access
Provisions in Dutch Copyright Contract Law (2015) 6 GRUR Int. 534
47
See A. Katz, Everything Open in Shemtov & Walden, Free and Open Source Software (n 5) at
p.467.
48
DCA, (proposed) Art 25c
49
DCA, Art. 45d

10. required by the Rental and Lending Rights Directive,50
for the resale of original
works of art as required by the Resale Right (Droit de Suite) Directive,51
and for
purposes of compensating the authors for the imposition of certain limitations on
copyright.52
The CCA will introduce four additional mandatory (i.e. unwaivable)
rights of equitable remuneration into Dutch copyright law.
The first of these rights ensures that every author and performing artist is
entitled to equitable remuneration for the granting of exploitation rights.53
This is
a general right of equitable remuneration similar to the right introduced into
German law by the German Copyright Contract Law 2002.54
The amount of
remuneration deemed fair or equitable may be determined by the Minister of
Education, Culture and Science,55
but only at the request of both a representative
association of authors or performers and a representative association for users.56
The second right provides authors and performing artists with a claim for
additional equitable remuneration where an exploitation right is granted in respect
of uses unknown at the time of the grant and such unforeseen exploitation
subsequently occurs.57
The third right ensures that every author or performing
artist may receive additional equitable remuneration where the initial
remuneration is seriously disproportionate to the profits made from the
exploitation of the work – what is commonly referred to as a ‘best-seller’ clause.58
The fourth and final right introduced by the CCA ensures that the principal
director, screenplay writer and lead actors of a film are entitled to receive
proportional equitable remuneration for any communication of the work to the
public (with the exception of where the work is made accessible to members of
50
DCA, Arts. 12a (rental) and 15c (lending). These provisions are derived from Directive
2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental
right and lending right and on certain rights related to copyright in the field of intellectual
property, OJ L 376/28.
51
DCA, Art. 43a (resale). This provision is derived from Directive 2001/84/EC of the European
Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the
author of an original work of art, OJ L 272.
52
DCA, Arts. 16 (illustrations for teaching purposes), 16c (home taping activities) and 16h
(reprographic productions).
53
DCA, (proposed) Art. 25c para 1.
54
German Copyright Act, Art. 32.
55
In setting the sector rates, the Minister must have due regard to the importance of preserving
cultural diversity, the accessibility of culture, a social policy objective and the interests of
o su ers. The A t s Explanatory Memorandum sets out further guidance on how this joint
request procedure is to be undertaken by the Minister. See Explanatory Memorandum (n 14)
56
Cf. Article 36 of the German Copyright Act which provides for joint remuneration agreements to
be established between representative organisations setting the rates of equitable
remuneration.
57
DCA, (proposed) Art. 25c paragraph 6. The second sentence of paragraph pro ides that if the
party to whom the [author] concludes the contract has assigned this exploitation to a third
party and that third party commences exploitation, then the [author] may claim additional fair
compensation from that third party. See Visser, Schaap & Kreijger (n 2)
58
Similar clauses can be found in a number of European jurisdictions.

11. the public at a time and place individually chosen by them, i.e. for video-on-
demand).59
This fourth right to equitable remuneration is to be exercised
exclusively by a collecting society subject to voluntary membership.60
In assessing the effect that these mandatory provisions may have on FOSS
and CC licences, it is perhaps relevant to first consider that the German legislature
deemed it necessary to create specific exceptions for FOSS and CC licences when
introducing similar, unwaivable rights for equitable remuneration under the
German Copyright Contract Law of 2002. These exceptions – often referred to as
the “linux clauses” – apply where an author “grants an unremunerated non-
exclusive exploitation right for every person.”61
The argument for the German exceptions was stated at the time by
Metzger and Jaeger in their opinion written on behalf of the Institute for Open
Source Software Legal Issues (ifrOSS).62
In the opinion, it was acknowledged that
while the objective pursued in creating rights of equitable remuneration and other
author-protective rules was commendable, the mandatory nature of the rights
would have the unintended consequence of creating uncertainty in FOSS and CC
licensing models. First of all, as a result of the author being unable to waive their
statutory claim, it was noted that all subsequent licensees in the FOSS or CC
licensing “chain” would have to contend with possibility of remunerating the
author should they decide to exercise their claim in future; a concern further
exacerbated by the fact that, in the FOSS context, complex programs may be
composed of works from numerous authors, increasing the number of potential
sources (and the therefore risk) of claims. Secondly, it was pointed out that an
author who exercised their legal claim may, depending on the applicable licence,
be in violation of the terms of that licence, resulting in the termination of both the
upstream and downstream licences. Thus, it was held in conclusion that, absent an
exception, the entire licensing model would be put in question.63
On this basis,
59
DCA, (proposed) Art. 45d §2. This amendment comes as the result of negotiations between the
Dutch organisations representing directors (Dutch Directors Guild), screenwriters (Network
Screenwriters) and actors (ACT), along with their collecting societies LIRA, VEVAM and NORMA,
united as the Portal Audiovisuele Makers (PAM) and organisations representing Dutch
broadcasters, distributors and producers, united as the Rechtenoverleg voor Distributie van
Audiovisuele Producties (RODAP). Negotiations for the establishment of a system of
remuneration for the exploitation of audiovisual works through new digital channels extend
back to 2009. In anticipation of the Bill coming into force, an agreement has been reached as to
how the system will be implemented. For summary, see RODAP, Agreement on Compensation
for Filmmakers (last accessed 12 March 2015) available at <www.rodap.nl> (last accessed
23.03.15)
60
DCA, (proposed) Art. 45d §3
61
German Copyright Act, Art. 32 para 3 and Art, 32a para 3.
62
A. Metzger and T. Jaeger, Stellungnahme des ifrOSS zu den Vorschlägen für eine Regelung des
Urhebervertragsrechts (Institute Für Rechtsfragen der Open Source Software, 19.04.2001)
available at <www.ifross.org/ifross_html/urhebervertragsrecht.pdf> (last accessed 25.03.15)
63
A. Metzger and T. Jaeger (n 62)

12. rather than jeopardise the benefits contingent upon such models, the German
legislature saw fit to exclude alternative licences from the scope of the general
right to equitable remuneration.64
Further to Metzger and Jaeger’s observations, it is possible to foresee how
a right to additional equitable remuneration as found in the CCA, both in respect
of modes of exploitation that were unknown at the time of the grant and in respect
of any unexpected commercial success where the proceeds of exploitation are
disproportionate to the initial remuneration (i.e. best-seller clause), might create
added uncertainty in FOSS and CC licensing models. Considering the latter as an
example, concerns may arise where a given FOSS product or CC work becomes
extremely popular or, certainly in the software context, integral in some way, and
thus commercially successful.65
Here, the possibility of a claim being exercised by
an author will likely increase commensurate to the extent of the work’s
commercial success.
Finally, regarding the right of proportional equitable remuneration for
directors, screenwriters and actors of a film, it may be the case that participation
in the distribution of revenues received by the relevant collecting society (PAM)
presents problems for the simultaneous use of alternative licensing models for
films (e.g. CC), although this is unlikely to be the case.66
In light of all this, it is interesting to note that the CCA is prima facie
silent with regard to the potential conflict between mandatory rights for equitable
remuneration and alternative licensing models. The finalised text of the CCA
adopted by the Dutch House of Representatives fails to provide for an equivalent
to the German Copyright Act’s “linux clauses” and does not appear to explicitly
address this issue otherwise. However, it should be noted that an express
reference to alternative licensing models can be found in the explanatory
64
The German legislature made previous efforts to consider FOSS licensing models in 2001. This
resulted in the Parliament welcoming the use of FOSS-licensed products in the Federal
Administration. See Deutscher Bundestag, Antrag 07.02.2001 Drucksache 14/5246, available at
<http://dip21.bundestag.de/dip21/btd/14/052/1405246.pdf> (last accessed 23.03.15)
65
For the licensee to be able to exploit the work commercially, the original licence must allow it.
Per issi e or a ade i li e es allo for li e sees to resell the work as proprietary software.
By contrast, restrictive or non-commercial licences typically prohibit this; See L. McDonagh
(n 5).
66
[A statutor li e si g s he e] will not prevent the validity of the attachment of a Creative
Commons license, unless of course the related rights owner has assigned her rights to the
competent collecting society. The terms of the CC licenses themselves ensure this result, by
foreseeing different consequences for the attachment of the license depending on the system
within which it takes place. What the type of the licensing system does affect is whether or not
the user will subsequently be obliged to pay equitable remuneration e phasis added . C.
Angelopoulos, Creative Commons and Related Rights in Sound Recordings: Are the Two Systems
Compatible? In L. Guibault and C. Angelopoulos (eds), Open Content Licensing: From Theory to
Practice (Amsterdam University Press, 2011) p.295.

13. memorandum to the CCA which clearly states that “[remuneration] can, in certain
cases, be nil, or in natura, or included in payment for the work […] in case an
author chooses to work with an open access model or use a creative commons
licence”.67
Accordingly, while the text itself does not address the apparent
incompatibility that arises in this respect, it is clear from the memorandum and
related preparatory materials that the underlying concern has nonetheless been
taken into consideration and provided for at the stage of interpretation and
application.68
Certainly, codified exceptions are by no means the only way in which
equitable remuneration provisions can be reconciled with alternative licensing
models, as demonstrated by other jurisdictions that have adopted similar
mandatory regimes accommodating of the latter.69
With that said, one may
question whether the discretionary approach of the CCA is preferable; the
effectiveness of the approach depending on how the provisions are interpreted and
applied in practice.70
Thus, pending further clarification from the relevant Dutch
authorities and representative organisations, it will be interesting to see how FOSS
and CC licensing models react to these provisions. In this respect, the dispute
resolution committees established under 25g of the CCA may assist in providing
clarification should a dispute arise.71
Finally, while there may be residual
uncertainty regarding equitable remuneration claims (notwithstanding the
guidance found in the explanatory memorandum), it is likely that in practice the
normative social character of the licensing models (i.e. the communal values and
ethos) will play an important role in alleviating concerns that arise as a result of a
strict statutory reading of the CCA’s provisions.
67
Explanatory Memorandum (n 14) at p. 13.
68
See, Ministry of Security and Justice, Detailed Report on the Proposal for the Law on Copyright
Contracts (12.06.12) available at <http://www.rijksoverheid.nl/bestanden/documenten-en-
publicaties/kamerstukken/2012/06/19/nader-rapport-inzake-het-voorstel-van-wet-inzake-het-
auteurscontractenrecht/nader-rapport-inzake-het-voorstel-van-wet-inzake-het-
auteurscontractenrecht.pdf> (last accessed 23.03.15)
69
For example, under Romanian law, the conflict is reconciled by the fact that remuneration is
interpreted as not being limited to monetary terms and may be satisfied instead by the
undertaking of obligations. See, Romanian Copyright law (Law no. 8/1996 on copyright and
neighbouring rights), Article 43 para 2.
70
Martin Senftleben highlights the difficulties encountered in interpreting the scope and
application of similar remunerative mechanisms introduced by the German Copyright Contract
Act 2002. See, M. Senftleben, Copyright a d Creators I terests – Rights and Remuneration in
Light of Bordieu s A alysis of the Field of Literary a d Artistic Productio (November 2014) at
pp.13-19, available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2522855> (last
accessed 26.03.15)
71
DCA, (proposed) Art. 25g

14. [3.5] Mandatory Rules and Applicable Law:
Two final observations need to be made regarding the nature of the CCA’s
provisions. The first, which has been emphasised a number of times already, is
that the provisions are mandatory and cannot be waived by the author.72
While
this ensures that parties cannot contract out of the author-protective regime to the
detriment of the weaker party (often the author), the provisions’ unwaivable
nature creates potential problems for FOSS and CC licences, as discussed above.
The second observation is that in further strengthening the author-protective rules
against derogation by the parties, the CCA sets out a provision that aims to
prevent the circumvention of the rules through the use of a choice of law clause.
This provision mirrors Section 32b of the German Copyright Act which has the
same anti-circumvention rationale. The proposed Article 25h (2) of the CCA
provides that regardless of the law that governs the copyright contract, the CCA’s
provisions shall apply if (a) the contract would have been governed by Dutch law
in the absence of a choice of law clause or (b) the acts of exploitation of the work
take place or will take place wholly or predominantly within the Netherlands.73
[4] Concluding Remarks:
The introduction of the CCA brings important changes to copyright law in
the Netherlands, putting it on par with neighbouring jurisdictions whose laws
already provide for a number of author-protective rules in relation to copyright
contracts. With provisions on requirements of form, unreasonably onerous terms,
reversions of right and open access, the CCA’s amendments serve to promote and
support authors who exploit their works through FOSS and CC licensing models.
For authors participating in alternative licensing models, assignments and
exclusive licences (e.g. Contributor Agreements) will be affected the most,
whereas non-exclusive licenses that form the core of the licensing models fall
mostly outside the scope of the new provisions.
However, the Act does raise a number of concerns for non-exclusive FOSS
and CC licences in relation to its provisions on equitable remuneration. The
apparent tension in this respect - by no means limited to the Dutch model – is
revealing of some deeper conceptual divergences between alternative licensing
models and traditional modes of copyright exploitation. It is generally held that
72
DCA, (proposed) Art. 25h(1)
73
DCA, (proposed) Art. 25h(2). There have been questions over whether international regulations
will allo su h restri tio s o the parties hoi e of la . For a rief o er ie i E glish, see
Visser (n 46). For Dutch commentary, see Th. M. De Boer, Auteurscontracten en Internationaal
Privaatrecht (2011) AMI 3-9.

15. the primary objective of any copyright and related-rights regime is to ensure that
authors partake in the profits generated by the exploitation of their works so as to
incentivise and reward their creative endeavours.74
For regimes that consider this
objective to be frustrated by power imbalances between author and exploiter,
actions taken to correct such imbalances through mandatory statutory provisions
have the effect of entrenching this prescriptive vision of copyright to the exclusion
of others. As the embodiment of an alternative vision of copyright, it is easy to see
how FOSS and CC licensing do not easily integrate into a framework built around
copyright’s remunerative function. Indeed, FOSS and CC licensing models
relinquish the remunerative function, relying instead on copyright’s exclusionary
character, not as a means of creating the ‘contract space’ where access can be
bought by licensees for a monetary fee, but as a means of ensuring the vitality of
the commons by prohibiting privatisation, by preventing forms of conduct deemed
injurious to commons-based production and use of works, and by securing non-
pecuniary reputational benefits for creators.75
What becomes clear from this conceptual divergence is that broad-brush
reforms to copyright regimes, without consideration as to how competing
conceptual visions can co-exist within the same framework, may produce results
that are unintended, inconsistent and detrimental to certain groups of authors.76
For the most part, the CCA accommodates FOSS and CC models, promoting the
interests of all authors and performing artists notwithstanding their preferred
mode of exploitation. With regard to equitable remuneration, while it is not
immediately apparent from a reading of the Act’s provisions, alternative modes of
exploitation have nonetheless been taken into consideration and efforts have been
made to ensure that competing visions can co-exist. How this will play out in
practice remains to be seen.
74
L. Guibault and B. Hugenholtz, Study on the Conditions Applicable to Contracts Relating to
Intellectual Property in the European Union (n 27) at p.32
75
See, M. Senftleben, Copyright a d Creators I terests (n 70)
76
Ibid