Netherlands
Status
Adopted
Explanatory note re status
The Dutch Implementation Bill was passed by the House of Representatives on 17 November 2020, and was passed by the Senate on 15 December 2020. The text of the Implementation Bill as adopted is available here.
The Implementation Bill has entered into force on 7 June 2021, with the following exceptions:
- Article 16 DSM - this came into force on 1 January 2021; and
- Article 19 DSM - this came into force on 7 June 2022.
Implementation Act
Implementatiewet richtlijn auteursrecht in de digitale eengemaakte markt
(Envisaged) Implementation Date
7 June 2021, with the following exceptions:
- Article 16 DSM - this entered into force on 1 January 2021; and
- Article 19 DSM - this entered into force on 7 June 2022.
Approach to Implementation
Amendments to existing Copyright Act and Neighbouring Rights Act.
Next steps
Possibly, further rules on the application of article 17 DSM will be provided by way of governmental decree, based on the Guidance of the European Commission.
Noteworthy points arising from legislative changes
Unknown
Articles 3 & 4: The Text and Data Mining Exceptions
Implemented in articles 15n and 15o of the Dutch Copyright Act. The text of the implementation stays very close to the text of articles 3 and 4 of the DSM.
Article 15: The Press Publishers' Right
Implemented in article 7b of the Neighbouring Rights Act. The text of the implementation stays very close to the text of article 15 of the DSM. The exception to the protection for "individual words or very short extracts" is translated as "enkele woorden of heel korte fragmenten". Giving an interpretation of what exactly is to be understood by this is ultimately up to the Court of Justice of the European Union.
Article 17: Platform Liability Provisions
Implemented in article 29c of the Dutch Copyright Act. The text of the implementation has stayed rather close to the text of article 17 DSM; it is mostly a literal transposition of the provisions. However, it does include a provision that allows the Ministry of Justice to provide further rules on the application of the Article 17 implementation (by way of "governmental decree"). This provision leaves some room for the Dutch executive to bring its implementation into compliance with the Commission guidance and CJEU jurisprudence on the application of Article 17.
Chapter 3 Overview
Unknown
Article 18:
Implemented in article 25d of the Dutch Copyright Act. The Dutch Copyright Act already contained a bestseller right before the DSM was drafted. Firstly, the implementation of the DSM now scraps the previously included term "serious" coupled to the term "disproportionality" between performance delivered by both parties, and the proceeds from the exploitation of the work. It still has to be seen if this leads to any material change. Secondly, the possibility to institute the bestseller claim against the legal successors of the exploiting party is now extended to include (sub)licensees. This is an important strengthening of the position the authors and performing artists had vis-à-vis the bestseller provision prior to this implementation.
During the transitional period: even if the author has transferred the copyright before 7 June 2021, he may invoke the bestseller provision from 7 June 2021 onwards.
Article 19: Transparency Obligations
Implemented in article 25ca of the Dutch Copyright Act. The DSM allows the transparency obligation to be implemented in such a way that the associated administrative burden is taken into account. This option is exercised in the implementation. The DSM also allows for the obligation not to apply to authors who have not made "significant contributions" to the work or performance at hand. This option is exercised too.
During the transitional period: the transparency obligation has entered into force on 7 June 2022, and has immediate effect from that date (i.e. from that date onwards it is also applicable to agreements entered into before that date). Pursuant to the implementation, annual information must be submitted for the exploitation of copyrighted material that takes place from 7 June 2022 onwards.
