ArticlesVolume 41, No. 3 (2018)

More Money for Creators and More Support for Copyright in Society—Fair Remuneration Rights in Germany and the Netherlands

Martin Senftleben

Professor of Intellectual Property, Centre for Law and Internet, Vrije Universiteit Amsterdam. Guest Professor, Intellectual Property Research Institute, University of Xiamen. Of Counsel, Bird & Bird, The Hague.

Abstract

The current copyright system is intended to provide an incentive for authors to invest more time and effort in the creation of literary and artistic works (utilitarian argument), recognize the acquisition of a property right as a result of creative labour (natural law argument) and enhance authors’ freedom of expression by offering a source of income that is independent of patronage and sponsorship (free expression argument).1  These arguments may be combined with considerations of industry policy, such as the growth of the creative and telecommunication industries, and the creation of jobs in these industries.2  The basis of all these lines of reasoning, however, is the individual creator.  Without the constant efforts of creators, there would be no new literature and art to fuel the publication and dissemination machinery of the industry.  A focus on the income situation of the individual creator also ensures the acceptance of copyright law in society.  It adds social legitimacy.  Who would be against remunerating authors for the time and effort spent on the creation of a new work?

There is thus substantial reason to explore legislative measures seeking to ensure that copyright law generates not only a sufficient return on investment for the creative industries but also a decent income for individual creators.  With specific copyright contract rules that guarantee a right to fair remuneration, the legislation in Germany and the Netherlands is particularly advanced in this respect.  Hence, the question arises:  what lessons can be learned from German and Dutch experiences?  After a short introduction that refers to recent E.U. initiatives in this area, the following analysis will show that the issue of a fair remuneration for creators has a worldwide dimension.  In light of the rationales of copyright protection in continental-European and Anglo-American copyright systems, it becomes clear that the high level of protection that has been reached in both legal traditions and at the international level only appears legitimate if individual creators receive an adequate remuneration for their work.3  Fair remuneration is a universal, worldwide concern (Section I).  Against this background, the analysis sheds light on the practical effects of the legislation in Germany and the Netherlands (Section II) and leads to general guidelines for the improvement of the income situation of creators (Section III).

© 2018 Senftleben.  This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction, provided the original author and source are credited.

  1. These arguments will be discussed in more detail in Section I.  For an overview of justifications for copyright protection, see Martin Senftleben, Copyright, Creators and Society’s Need for Autonomous Art—The Blessing and Curse of Monetary Incentives, in What if We Could Reimagine Copyright? 25, 28–32 (Rebecca Giblin & Kimberlee Weatherall eds., 2017); F. W. Grosheide, Auteursrecht op Maat:  Beschouwingen Over de Grondslagen van het Auteursrecht in een Rechtspolitieke Context 127–29 (1986).
  2. For an example of this line of argument in legislation, see Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Recital 4, 2001 O.J. (L 167) 10, 10.
  3. As to the international level of protection, see Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised July 24, 1971, and as amended Sept. 28, 1979, 102 Stat. 2853, 828 U.N.T.S. 221 (entered into force in the United States Mar. 1, 1989); Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments––Results of the Uruguay Round vol. 31 (1994), 33 I.L.M. 81 (1994); WIPO Copyright Treaty, adopted Dec. 20, 1996, WIPO Doc. CRNR/DC/94.  For commentary, see, e.g., Le Droit International de la Propriété Intellectuelle Lié au Commerce:  L’Accord sur les ADPIC, Bilan et Perspectives, (Christophe Geiger ed., 2017); Martin Senftleben, Commentary on the WIPO Copyright Treaty, in Concise European Copyright Law 93, 93–139 (Thomas Dreier & P. Bernt Hugenholtz eds., 2d ed., 2016); Daniel Gervais, The TRIPS Agreement:  Drafting History and Analysis (4th ed., 2012); Sam Ricketson & Jane C. Ginsburg, International Copyright and Neighbouring Rights:  The Berne Convention and Beyond (2006); Mihály Ficsor, The Law of Copyright and the Internet:  The 1996 WIPO Treaties, Their Interpretation and Implementation (2002); Jörg Reinbothe & Silke von Lewinski, The WIPO Treaties 1996: Commentary and Legal Analysis (2002).