Endstra’s final work: scope of protection Dutch copyright remains very wide

 

On 30 May 2008, the Supreme Court in the Netherlands judged in a dispute between the sons of the real estate broker Endstra who was murdered in 2005 and two journalists that for the creation of a copyrighted work it is not required that the author intended to make a creation.

In 2003 and 2004, the real estate broker Endstra held fifteen conversations with detectives of the Criminal Intelligence Unit in all secrecy. Endstra told them that he was extorted for many millions by Willem Holleeder. He also accused the Holleeder-organisation of a large number of liquidations. Without Endstra’s knowledge, these conversations were recorded on tape and the majority of these conversations were literally typed out later. For safety reasons’, these recorded conversations were held in a driving car and are also known as ‘the back seat conversations’ or ‘the Endstra tapes’. Not four months after the last conversation, Endstra was murdered.

The police started an investigation into this liquidation and the extortion by the Holleeder-organisation. The transcripts of 9 conversations and summaries of the other back seat conversations were added to the criminal file and were obtained by two journalists of the Dutch newspaper the Parool. These journalists published these conversations in a book with the name ‘the Endstra-tapes’ only omitting too many ‘ers’, dots and certain personal information and adding a preface and an epilogue.

It is not a total surprise that Endstra´s sons are not happy with this publications and try to enforce through the court that this book must be withdrawn from the market. For this, they inter alia assert that the back seat conversations were conducted in an interview form and that these interviews are to be designated as a work in the meaning of the Copyright Act and are therefore copyrighted like a painting or lecture. For publication thereof, permission is required from the Endstra heirs.

A brief explanation is not out of place here. A product is copyrighted in the Netherlands if there is an expression that ´has its own original character and bears the personal stamp of the author´. In other words: a work must be somewhat original. Beautiful or ugly, good or bad, little effort or years of work, this is all irrelevant in the judgment whether something is copyrighted: as long as there is an original expression this will in general be copyrighted. Concrete examples of works that may be copyrighted, are novels, paintings, software and this article, but also television formats, musical improvisations, games and lectures. But this is not the end of it. In 2006, the Dutch Supreme Court determined that also a scent may qualify for copyright protection. In the same year it was also affirmed that kinetic schemes may also be copyrighted. It is therefore clear that a large diversity of works in the Netherlands enjoy copyright protection. Also conversations and interviews can be regarded as copyrighted works.

Back to the Endstra-tapes. Both the District Court Amsterdam and the Court of Appeal Amsterdam did not find that these conversations are copyrighted. These courts see the conversations as a businesslike transfer of information. It is assessed that the requirements applicable to qualify for copyright protection in the Netherlands are low, but not so low that there is no threshold at all. Before there is a work in a copyright meaning, this work must have been ‘conceived as a coherent creation’ by the author. An author must intentionally want to make an intellectual creation, as the Court of Appeal told. Although Endstra undoubtedly thought about what he wanted and did not want to release to the detectives and therefore applied a certain selection, he did not intentionally couch his story in this design, which means that there is no copyrighted work.

Actually, the Court of Appeal says here that if someone does not intend to make a copyrighted work, no copyrighted work is created. Endstra thought he was only transferring information hoping that on this basis the Criminal Intelligence Unit would catch Holleeder and mates. He was not writing crime fiction and therefore does not deserve copyright protection according to the Court of Appeal.

With the introduction of this ‘intention requirement’, the Court of Appeal seems to add a new requirement to the copyright protection requirements. Wrongfully, according to the Supreme Court. It is true that there must be human labour and therefore creative choices, but it concerns a characteristic that is to be known from the product itself. It is not important whether the author has intentionally wanted to create a work and has intentionally wanted to make creative choices. In other words: it does not matter whether Endstra opted for making a work and intentionally made particular original choices. If in the Endstra-tapes sufficiently creative choices were made, these conversations are copyrighted. Whether this is also actually the case will be assessed by the Court of Appeal The Hague.

Some lawyers have asserted that such view is incorrect because there must be an ´intended creation´, it being important whether this creation is destined for publication. I myself think that the Supreme Court is right though. Also unintended creations deserve to be copyrighted. Contents and intention are, just like the question whether something is ´beautiful´, irrelevant in the answer to the question whether something has an original design. In addition, the intention requirement is not completely logical: the creation of a work is for example not the primary approach of this piece of text by me. The primary object of this article is to inform you, not to create a copyrighted work.

Furthermore, in practical respect it is naturally very hard to find out whether a particular form was intentionally chosen. It can in any case not be inquired from Endstra anymore…

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