English 
1. Introduction
The updated Dutch Copyright Act implementing the Copyright Directive is in force as of September 2004. The new Article 29a of the Dutch Copyright Act stipulates the obligations regarding technological measures. Effective technological measures may not be circumvented nor may circumvention devices or services be provided which aid to the circumvention of such technological measures.
2. Definition of Technological Measures
Section 1 of article 29a contains the definition of technological measures. The provision copies the Directive almost verbatim. Protected technological measures are:
· technologies, devices or components which
· in the normal course of their operation
· serve to prevent or restrict acts
· in respect to copyrighted works,
· which are not authorized by the author or subsequent right holders.
Thus, any technology, designed to block an act for which the user did not acquire the permission of the copyright owner, falls under the definition (and therefore is protected). Consequently, not only are technological measures protected which prevent acts that are copyright infringements, but also technologies which block any act which the right owner did not authorize.
At least, this is what the provision appears to imply. However, there is some confusion as to the exact scope of protection of technological measures. At first, the Minister of Justice asserted that technological measures that control access are covered (Tweede Kamer, vergaderjaar 2001–2002, 28 482, nr. 3, p. 55). Later on, he stated that only measures which hinder acts that are restricted under copyright law, i.e. the acts of reproducing a work and of making it available to the public, are protected (Handelingen Tweede Kamer, 11 February 2004, p. 50-3346). As there is no “copyright of access,” technological measures which merely block access would then not be covered and could therefore lawfully be circumvented.
In any case, technological measures that prevent acts that are exempted under copyright law are protected. Therefore, one is, for instance, not allowed to circumvent a measure that hinders private copying, even though private copying is explicitly exempted under the Dutch Copyright Act. The protection of technological measures is limited by the fact that only technological measures applied to copyright protected material are covered. Consequently, technologies preventing acts as regards non-copyrightable material, for instance, material in regard of which the copyright has expired, may lawfully be circumvented.
3. Effectiveness
Only “effective” technological measures are protected. The provision goes on to state that a technological measure is deemed to be “effective” if:
· the use of a protected work is controlled by means of an access control or by application of a protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.
Again, this provision is copied verbatim from the Copyright Directive. The question, however, remains what the requirement of effectiveness means. The explanatory memoranda with the Dutch bill reveal that a measure is “effective” if it provides the intended protection, which seems quite obvious. A technological measure is ineffective if no special effort or means are required to breach it, or if it only has a signaling or cautionary effect. On the other hand, the sole fact that a technological measure has been circumvented does not make it an ineffective measure for the purpose of this provision. It does not need to be 100% waterproof, as long as it provides some of the protection it is intended to provide. Ultimately, the courts will have to apply the criterion and until they have done so, we won’t know the exact implication of the requirement of effectiveness.
4. Restricted Acts, Sanctions and Remedies
Circumvention
The following two sections of the provision list the restricted acts regarding technological measures. First, Section 2 of article 29a states that anyone circumventing an effective technological measure, who does so with the knowledge, or with reasonable grounds to know, that he is pursuing that objective, commits an unlawful act and may be held liable under civil law.
The Dutch legislator felt that it would be inappropriate to introduce penal liability, because that would violate a basic principle of criminal law. The rules of criminal law have to be definite and clear. The description of an offence may not hold vague terms or ambiguities and as the legislator finds that the stipulations of the Directive and of article 29a are not particularly clear, it would not be appropriate to introduce penal sanctions. Additionally, during the debates in parliament, it was expressed that the enforcement of copyright should be a private matter.
Circumvention Devices and Services
Section 3 of Article 29a concerns the provision and distribution of circumvention services or devices. Briefly put, circumvention devices are cracks. The provision of information, for instance, on a website, aiding to the circumvention of a technological measure could be a circumvention service for the purpose of the provision. The offering of such services or devices constitutes an unlawful act, if the devices or services:
(a) are advertised for circumvention, or
(b) have only a limited commercially significant purpose or use other than to circumvent technological measures, or
(c) are primarily designed for circumvention
Again, and for the same reasons as mentioned above, only civil remedies are introduced. Particularly, the meaning of the criterion under (b) is too unclear to justify a penal sanction. People can perhaps ensure to avoid falling within the categories of (a) and (c). But until judges have determined when exactly a device has “only limited commercially significant purpose other then circumvention”, it is very hard to avoid breaching this law. Is the criterion fulfilled when 51 % of users apply a device for circumvention, or 10 %, or if 30 % percent of its functions have nothing to do with circumvention or must that be 80 %? At this stage, it is impossible to know. If a penal sanction were introduced, for instance, the CEO of Philips could risk imprisonment, even if he could not possibly foresee that a device made and sold by Philips would violate the provision.
5. Exemptions and Exemption Procedure
As is mentioned above, technological measures appear to be protected if they restrict any act which is not authorized by the copyright holder. Therefore, not only does one need the right holder’s permission to engage in a copyright infringing act, but, if it is technologically blocked, a license is also needed to lawfully perform a non-infringing act. Even if an activity is expressly exempted by copyright law, like the act of private copying, a right holder who applies technological measures statutorily has control over that act.
The Directive, however, allows the EU Member States to cater for some of the copyright exemptions. But the Dutch legislator decided not to do so yet. The new legislation allows the Minister of Justice to by decree introduce a requirement for copyright holders to provide the means which enable certain exempted acts. Of course, until the Minster sees fit to issue a decree, no such obligation will exist.
The Dutch Copyright Act contains many exemptions. But the decree may only be issued for those exemptions permitting educational usage, usage by disabled people, private copying, copying for preservation purposes, temporary copying by broadcasting organizations and usage for judicial or administrative purposes. Exactly which “means” the right holders will have to provide remains uncertain until a decree has been issued.
The Dutch Minister of Justice expects that the parties involved – right owners and users – will come to an understanding on the exempted uses concerned. He allows them some time to do so, before considering the introduction of an obligation to enable technologically blocked usage. Additionally, as the Directive prescribes, the Minister will not introduce the obligation for right holders to provide the means necessary to perform an exempted act, if a work is distributed on demand online and the user agreed contractually not to perform the exempted act. This implies that a user who, before acquiring a file online, had to scroll through a license stating that permission is needed for any usage and who clicked the “I agree” button, may never demand that a right holder facilitates any usage. The decree cannot be of help to him.
6. Neighboring Rights & Database Rights
The protection of technological measures introduced in Article 19 of the Neighboring Rights Act and in Article 5a of the Database Rights Acts is very similar to the protection of the Copyright Act. There are no differences worth mentioning here.
7. Technological Protection of Software
The newly introduced article 29a does not apply to the technological protection of software products. Technological protection of software is covered by article 32a of the Dutch Copyright Act. Thus, technological measures applied to computer games and other software applications are protected by a different regime than those applied to films, music or texts.
Article 32a differs in two important ways from article 29a. First, it only targets the person who intentionally offers the means by which technical measures can be circumvented (cracks). The acts of circumvention and of providing circumvention services are not covered. Article 32a only concerns the commercial dealing in circumvention devices. The second main difference is that a person who violates article 32a risks penal sanctions, which is not the case under article 29a. The sanction may be imprisonment of up to six months or a fine of up to 11.250 Euro.
Article 32a was introduced in 1993. Until now, two rulings involving the provision have been reported. A penal court held that a seller of mod chips intended for Sony Playstation consoles violated the provision. He was sentenced to community service of a few weeks and a probational prison sentence of 6 months (Rb. Alkmaar 30 november 2000, Computerrecht 2000, p. 157). Under Dutch law, a civil case may be initiated if a person violated a provision of penal law. The second reported case, also about mod chips, was decided by a civil court. The defendant pleaded that mod chips may be applied for non-copyright infringing usage: to use back-up copies and to play imported games. However, the court ruled that the dealing in mod chips nevertheless violates the provision. Particularly, because, according to the court, the making of back-ups of CDs is not necessary – contrary to the making of back-ups of floppy disks – and because it is likely that most people will apply mod chips to play illegal copies, instead of legally imported games (Pres. Rb. Breda 24 april 2002, AMI 2002, p. 137).
8. Miscellaneous & Controversial Subjects
DVD protection
According to the definition of technological measures, such measures are only protected if they block unauthorized acts “in the normal course of their operation”. The Dutch Minister of Justice stated that this requirement implies that technologies which disrupt the normal functioning of electronic equipment (such as playback- and recording equipment) are not protected and may therefore lawfully be circumvented.
The Minister stated that a consumer may justifiably expect that any film on DVD will function normally (play) in his DVD-player. If technological measures prevent the contents of a DVD from being properly displayed, it may be argued that those measures do not constitute technological measures for the purpose of Article 29a and may be circumvented. Therefore, to circumvent region control mechanisms which prevent to view a DVD sold in one region (e.g. the
Levies and Technological Measures
Under the updated Dutch Copyright Act, digital copying for private purposes is allowed. However, right holders are compensated for the losses by a levy on recording media – e.g. recordable CDs and DVDs, audio- and videotapes and, possibly, hard-discs. Currently, the levy paid for CD-recordables specifically intended for music is 0,42 Euro per hour that fits on the disk, while for CDs intended for data it is 0,14 Euro per CD.
Of course, it would not be fair if a levy were due on recording media, if private copying is technologically blocked. The consumer would pay for something he would not get. Therefore, copyright owners who use copy protection mechanisms, for instance on music CDs, cannot apply for compensation. Moreover, as more copying is technologically blocked, the levy should become lower. The Dutch Minister of Justice adds that all levies may be abolished, once reliable and standardized technological measures are available. Copyright holders then no longer have a choice to either technologically block private copying, or to apply for compensation through the levy scheme. They must fend for themselves.
Encryption Research
Academics who engage in research on encryption systems may violate Article 29a. Many technological measures consist of an encryption layer and attacking such systems in order to find soft spots could be regarded as an illegal act of circumvention. Even more problematic, publication of weaknesses in DRM-systems – e.g. in an academic journal – could fall under the prohibition on the provision of circumvention services. This could stifle (academic) research on cryptography.
The issue was brought up by Members of the Dutch Parliament. The Minister of Justice, however, is unwilling to include an explicit statutory exemption for encryption research. But he did add that “serious” scientific research may lack the intention to circumvent a technological measures for the purpose of article 29a and may therefore not be unlawful. Moreover, publication of research results does not necessarily constitute an unlawful act, as there could be grounds for justification under general tort law. The Minister went on to state that in publishing research results, scientists have to take the utmost care to ensure that they do not enable third parties to easily circumvent a technological measure.
Author:
Kamiel Koelman & Menno Briët
Computer/Law Institute
Free University of
Last Update:
The relevant parts of the legislation are also available (in English and Dutch). The explanatory memoranda is only available in Dutch. Click here for the relevant legislation
Click here for the explanatory memoranda (dutch only)
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