Het Kopijrecht - Summary

Copying each others works became commonplace after the invention of printing, to the detriment of the first person to print the particular work. This was a disadvantage that was known and accepted by those in favour of pirating while those who were opposed to the practice had already begun to discuss the best ways of combatting it as early as the end of the fifteenth century. The obvious step to take was to approach the authorities and request that suitable measures be taken which resulted in the granting of printing and book privileges. Although this went hand in hand with censorship this did not prevent those obtaining the privileges from regarding them as part of their business capital.

DrukkerijThe writer, although in practice it was the printer or bookseller who had the legal disposition of the right of copy, could request a privilege for the work in question. The intention of the government and the guilds was to limit privileges to original, that is new or translated works. The emphasis here was on the term original ('originair') which meant not yet previously printed work and which also included work, whether or not in a translated or an adapted version, which had appeared elsewhere though not in the jurisdiction in question. No distinction was made between a pure and a corrupt right of copy.

Many disagreements arose because of a lack of understanding of what was involved, the use of incorrect terminology, misunderstandings, inaccurate translations of foreign terminology, distinguishing between hack writers, e.g. grubstreet writers and independent authors and the existence of the freedom to contract which in practice meant all the author's rights being transferred and the fact that the corpus mysticum was embodied with the corpus mechanicum. This, from a point of view of natural law, inevitably resulted in a form of classic ownership which led to a Verlagseigentumliches Urheberrecht (copyright owned by the publisher).

Printers and booksellers did realise that the private domain would one day be swallowed up by the public domain, but as long as a publication was commercially viable they wanted to maintain their rights of copy, including that for future generations.

With regard to the public domain in relation to officially adopted church and school books, it appeared that misunderstandings and disputes arose time and again about publications introduced on the State's authority and publications which had been prescribed by the recognized ecclesiastical authorities with the implication that other works which had been in use were no longer permitted. Therefore, it was not advisable that a bookseller should be allowed to gain the long term monopoly for selling work which had usually been paid for by the community. The essence of most of the regulations ­ here and elsewhere ­ was that the copy had to have been acquired lawfully. In the Dutch Republic it was realized earlier than elsewhere that piracy was a problem which had to be dealt with separately to censorship and that the privileges were really meant to protect a work from piracy. However, measures taken to combat piracy were limited and this was a contributory reason that booksellers often took initiatives, although these often came to nothing as they frequently disagreed amongst themselves.

In the Northern Netherlands appreciation of the author's legal position developed more slowly than elsewhere, mainly because printers and booksellers insisted that the right of copy and its protection was part of the book trade's domain. Literary ownership, therefore, remained based on customs and notions of natural law well into the 19th century. There was no question of an enlightened dogmatic approach of the phenomenon of literary ownership, even though the printers and booksellers realized very well that there was a profound distinction between the right of copy to an original work and the preferential rights to reprints and translations of foreign works. They considered every right to be ownership, supported in this by the fact that infractions were punished with the same penalties, while at the same time they wished to deprive a colleague of his right of copy if he hesitated to publish a reprint of a work which was out of stock.

In 1707 and 1710, it had looked for a brief period as if the States of Holland wanted to move in another direction when dealing with the requests for privileges by D'Outreyn and Noodt. The privilege granted to Noodt was a cross between a general privilege and an early form of copyright. It seems justified to conclude that in the early eighteenth century the States of Holland began to take the rights of the author into consideration. Nevertheless, the Resolution of 1715 did not go beyond imposing some conditions for granting privileges. Neither the scope of the literary ownership, nor the author were mentioned and he had to obtain his rights in accordance with the civil law.

In 1728, a resolution containing some aspects of an author's copyright was passed. The essence of this was that nobody in Holland was permitted to print a new work by professors or other members of the University of Leiden without written permission and this was the first time that a right was granted to a group of authors. The person who inspired the resolution had been more concerned with certain personal rights but if these were linked to the required authorization then the economic aspect was enhanced as well. Since the resolution had no time limit, it gave the authors the chance to impose conditions concerning the publication and distribution of their work. However, once the rights had been transferred the bookseller regained the right of copy. To the Leiden authors the decree meant that they could act against piracy and forgery of their work for a long period of time without having separate privileges at their disposal. The reason that the resolution did not have as much effect as might have been expected was that the Leiden authors were more concerned with the integrity of their work than with its exploitation. The resolution of 1728 only applied to the Province of Holland. However, the 1735 Resolution was again to the advantage of the booksellers.

In 1795, the Province of Holland was given its first publication regulating literary ownership in the same way as a publisher's right. The privileges were abolished but the guilds managed to struggle on for some years yet. The 1795 publication became final in 1796. This was replaced by an Act in 1803 which was applicable to the entire Republic. This stated that the author in possession of the kopijrecht or the bookseller who obtained this acquired an exclusive right of publication as his property which allowed him perpetual protection from piracy. The right of copy was not restricted to the booksellers, but in practice this was nearly the case, not least because use of the term 'opsteller' (inventor or arranger) included the bookseller who drew up a work for publication.

The act prescribed procedures whose non-compliance resulted in the loss of the right of ownership or preference, despite the fact that the author had acquired his 'kopijrecht' sui generis and that the printer or bookseller had acquired his right of copy legally. This act constituted the beginning of the incubation period of copyright in the Netherlands. There was no discussion about the possibility that the legislator could have intended the term heirs to mean only the first generation of heirs rather than a continued inheritance and such a limitation was never put forward by the courts either.

Between 1810 and 1813, French legislation applied so that the Netherlands became acquainted with a real authorial copyright for the first time. In 1814, this was rescinded and the legislation from prior to the annexation was restored. This took place with the Decree of January 1814, which only applied to the Northern Netherlands and provided for the restoration of the Act of 1803. It did appear, though, as if the legislator was striving to break away from the classic concept of ownership, but since there was again talk of a right of copy and legal acquisition the apparent priority for the author remained hidden behind the rights to be acquired by the printer and bookseller. If the legal conditions were not met, there was no question of a right of ownership or preference having been acquired either by the author or by the bookseller even if they had the right of copy. Despite the legal consequences it is remarkable that mandatory filing was often ignored and that the penalties were rarely taken seriously.

Different legislation was in place for the Southern Netherlands, but after the two Netherlands had been united into one kingdom a uniform act was established in 1817, which was a compromise between the two very different approaches. This had been preceded by a substantial and unworkable bill which was solely aimed at the interests of the book trade. That the legislator wished to move away from this point of view and tended towards the French doctrine is apparent from the fact that the draft bill was rejected. It was criticised so vehemently by the Council of State that a thoroughly altered bill was presented, taking into consideration the basic premises of the Civil Code, the Draft Civil Code of 1816 and the views that were prevalent in Belgium. The point of departure was and continued to be every author's right of ownership of his literary work or his work of art although the final version of the act made concessions to the Holland booksellers. This act also stipulated that that the author ­ this included foreign authors ­ or his successor(s)-in-title could only appeal to the right of copy or the exclusive right of publication when the prescribed stipulations had been fulfilled. The act tied the term of protection to the life of the author, plus twenty years.

Ownership was no longer mentioned, but the owner of the original edition was, causing booksellers in Holland to persist in the belief that their literary ownership still existed. This belief was strengthened by the use of the term kopijrecht (right of copy), which had always been linked to the right of ownership, but which had now received a different meaning according to the letter of the law. Printers and booksellers continued to be frustrated by the fact that ownership could be lost by the mere passing of time, especially with regard to work which had appeared before 1817. Because the act continued to attach rights to the printed work, only punishing the piracy of this and because it prescribed the mandatory use of Dutch printers and publishers, its effect remained limited to printers and booksellers so that it remained a publisher's act.

The advice given on request by five legal scholars rejected the literal letter of the law and a logical and teleological interpretation in favour of the prevailing civil law, legal certainty, acquired rights and tried and tested ancestral and Roman law. The booksellers were pleased with this advice, although it soon became apparent that it was more of an academic issue than a practical one.

In 1820, the High Court was of the opinion that the Act of 1817 could render prior legislation ineffective. So, too, did the court in Sneek in 1822.Verdicts and decisions that followed, however, did not agree with that point of view. In 1839, the Supreme Court still declared that a prescription on works which had been published prior to 1817 was contrary to the spirit and the intent of the law as well as to the legal principles held in the Netherlands. It was not until 1843 that the perpetual right of copy was rejected and this was underlined again in a judgment in 1849.

Printing and reprinting of state documents was a problem in almost every state. The authorities wished to retain the control of their own publications, in part to provide their own printing house with a privileged position. It was recognised that the State could prohibit reprinting of state documents, but that after publication by the State, exploitation in certain publications was permitted. The State found this acceptable, but rendered the publication, except for in newspapers, dependent on its permission. Because the Act of 1803 had made no mention of the State's right of copy this was rectified in the notification of 1805. After the French period, the subject was not mentioned in the Acts of 1814 and 1817 because the State assumed it had the same rights as a private citizen. The Draft Civil Code of 1816 also provided the possibility of the reservation of certain rights for the State. The Royal Decrees of 1822 and 1829 repeated the existence of the State's copyright although they did provide some assistance to the booksellers but it was not until 1840 that the Supreme Court decided that a right of copy for the State was legally impossible.