Staatsauteursrecht - Summary

State's Copyright cum annexis Public access in the trias politica and the right of copy and copyright 17th-21st century
Introduced by dr. Jacob Kohnstamm

This work has attempted to describe the consequences linked to the constitutionally and legally required public access, publication, accessibility, availability and further dissemination of legislation, administrative decisions, judicial decisions and more recently other basic state and administrative information. It began with the claims made by the state to the right of ownership to 'deeds of the state' (i.e. acts, regulations, etc.), with repeated prohibitions on copying them, followed by the implied establishment of a right of copy on these deeds.

The constitution of a state under central rule brought about a state domain in which, for the time being, the executive branch continued to be the defining factor in issuing legislation and enforcement. Even though the trias politica was professed there was as yet no democracy. During the Batavian Republic, the Kingdom of Holland, the Monarchy of Holland and the early years of the Kingdom of the Netherlands the ideas on proclamation, promulgation, publication, public access, publishing and the binding force of acts, orders and bylaws were obscure so that the state's right of copy under the legislation of 1814 and 1817 continued to exist implicitly. For considerations of expediency and cost the state did leave the 'appropriate' notification of acts, orders and bylaws to the daily newspapers.

The Act of 1817 did not provide for a right of copy for corporations, associations, moral bodies or public institutions. Both the conditions and the period of protection pertained to natural persons. Nevertheless, under this law in 1822 two Royal Decrees followed that prohibited the copying and selling of acts without permission because this caused harm to the national printing house. Subsequently, the state granted a number of licences between 1822 and 1840 allowing acts to be included wholly or partly in juridical works.

In 1840 the government felt that an example had to be set against illegal publications of acts. In the case against Noman en Zoon (Noman and Son) the raisons dՐtre (reasons for being) of the right of copy were explored so thoroughly that only then did the realization sink in that the right of copy or copyright was not an (intellectual) property right of the printer, publisher or state, but rather of the creator. A form of special ownershipwas unthinkable where the act required public access. The decision by the Supreme Court in 1840 - the first turning point - confirmed that a state's right of copy on acts and other such documents could not exist for either higher or lower authorities.

Due to the ministerial responsibility which profoundly changed the constitutional relationship with the King in 1848, public access, publication, declaration and binding force gained more material significance.

It appeared in 1881 as though the state was once again steering towards a state's right of copy when art. 4 of the Copyright Act of 1881 stated that the government could reserve copyright in instances provided for by Us. Because art. 2b, Copyright Act 1881 equated public institutions with authors a state's copyright also seemed possible via that route.

In its art. 11, the Copyright Act of 1912 provided clarity in the wake of the Act of 1881 by stating that there was no copyright on regulations, court decisions or administrative decisions. The possibility of a state copyright for other works made public by or on behalf of the state authority was dependent on a reservation.

Art. 11 of the Copyright Act was split in 1972. Para. 2 was placed in art. 15b, separating legislation and court decisions from works of literature, science or art made public by or on behalf of the state authority; as a result works of the state under the rule of law not belonging in one of these categories appear to fall between two stools. An important amendment in 2005 was the addition 'of which the state authority is the creator or the successor in title', allowing third party copyrights in otherworks made public to remain intact, even though this amendment created fresh confusion in relation to the key phrase 'on behalf of'.

The second turning point described in this work that sketches the process of transparency in which the legislative power democratized the executive power and that provides more insight into the operation of the state was the result of the momentum in the technological development of electronics. However, it became clear that in striving to promote the supply of public sector information as information became more extensive it became harder to set the boundaries.

In searching for equilibrium between, on the one hand, the applicability of copyrights and database rights, and on the other hand, the public access to the broadened basic information of the democratic state under the rule of law, other information of the state under the rule of law, and public sector information, the issue was that of the balance between public and private law, between the common and public interest and the individual interest.

Nevertheless, international treaties, European institutions, directives, national legislation, etc. as a consequence of this striving for education in the sense of administrative law resulted in public sector information becoming part of the public domain in practice. That which could serve citizens without any danger to the state or disproportionate harm to third parties had to be public or at least available for consultation. Even though copyright-protected information could be included in such documents, the moment the Government Information Act came in sight, copyright proved to be an uneasy right.

As the free flow of information was propagated more forcefully, access to public sector information became faster and easier and legislation was expanded with framework acts and administrative power was delegated, the courts began to heed the spirit of the lawmore. The consequence of this was that the law became less dogmatic and functioned more on a case-by-case basis; it became more analogue than monologue, yet at the same time it became more complex and obscure.

The complexity and the multitude of directives, acts, orders, bylaws, ministerial directives, missives and case law in a national, European and international context resulted in citizens no longer being able to keep track of the legislator and the administration if there was no methodical arrangement of both existing and preceding, relevant legislation, case law pertaining to this and the related information, and that again caused the need to supplement, adapt and harmonize legislation, also in the area of intellectual property law, database legislation, public access to administration, privacy legislation, and the like. In this respect, it can be debated whether it would not be advisable for the Supreme Court to take on a role in which it sets such standards, and to do so timely and more forcefully than it has done in the past.

The development of electronic techniques offered a solution to the way in which the state could realize the accessibility of information on legislation, case law and administration in an efficient and acceptable manner. Information about the Berne Convention, the Universal Copyright Convention, European treaties, conventions, bylaws, directives, instruments, articles of association, regulations, advisory documents, recommendations and resolutions of the Council of the European Union, as well as European case law also became available for consultation via the internet, partly in Dutch.

Successive governments were of the opinion that information and communication technology was a panacea to solve complex problems while at the same time repairing the bond between citizens and their government. That proved too ambitious. The same is true for the notion of governments which felt that the common interest was better served by privatizing public tasks while at the same time striving to maximize the transparency of (semi-) public sector information. The free market system was stimulated, but - even though the central government's instructions for non-departmental agencies and legal persons with a statutory task were coercive and binding - oversight and enforcement continued to be a problem.

There was an effort to respect the protection of the Copyright Act and Databases Act, while the Government Information Act was broadened and private parties were given the opportunity to re-use public sector information for commercial purposes. The state aspired to eliminate unfair conditions of competition between authorities and citizens, yet again allowed non-departmental agencies to realize monopolistic market territories. Juridical acts under public law had to be separate from juridical acts under private law, but the administrative practices and accountability in many a non-departmental agency were nebulous.

The Non-departmental Public Bodies Framework act was aimed at the arrangement, uniformization, verification, public access and validation of the ministerial responsibility, but if that responsibility could cause unrest or harm in a political sense or in the sense of constitutional law, it could also be avoided.

When attempts were made to further define the basic information of the democratic state under the rule of law, the flexible concept of 'democratic' formed an obstacle, due to which the definition of basic information could not be exhaustive. The constitutional obligation of publication, public access, declaration, availability and accessibility of legislation and regulations, court decisions and administrative decisions, as well as the advancing democratization became the impetus for the current availability and accessibility of basic public sector information, both of central and local authorities.

For this information to be transparent and accessible, the pertinent European regulations should themselves also be comprehensible and clear. This requires an integral, consistent view on political, economic, social and cultural aspects, on the priorities and measures which have to be based on a nomen clature that is not open to misunderstandings, both towards the public and the private domain and with a restraint to prevent market mechanisms from running out of control in the public and private sector.

With all this, it is important to consider that too much legislation goes hand in hand with greater power for the state, causes an overdose of bureaucracy and public sector information and undermines faith in the state and as a result the involvement of citizens with the state has a contrary effect.