The transposition process
A draft Bill for transposing the CDSM Directive in the Netherlands was published in July 2019. It was accompanied by a public consultation from July to September 2019, which was answered by three umbrella organisations of libraries, museums and archives with a shared submission. Debates in the two chambers of the Dutch Parliament followed and the final text was adopted by the First Parliamentary Chamber in December 2021, accompanied by an Explanatory Memorandum which provides interpretations where the legislative text is not clear enough. The provisions concerning cultural heritage institutions went into effect on 7 June 2021.
Cultural heritage institutions were recognised as stakeholders in this process and were given the opportunity to comment on confidential drafts during meetings with both the Ministry of Justice and the Ministry of Education, Culture and Science.
After the implementation process was finished,the Ministry of Education, Culture and Science initiated a stakeholder dialogue on the topic of out-of-commerce works, as mandated by the Directive. This dialogue is still ongoing, and another on the topic of text and data mining will soon be initiated.
Text and data mining
The two exceptions to copyright for text and data mining in the CDSM Directive allow for the creation of reproductions for this purpose without the need to ask the rightsholder for permission, under certain conditions. Their transposition into Dutch law resulted in changes being made to the Dutch Copyright Act, the Neighbouring Rights Act and the Databases Act. The transposition of both exceptions generally follows the text of the Directive closely.
The first exception allows research organisations and cultural heritage institutions to mine any type of material. The transposition text did not put conditions for storing and retaining copies made in this process. The second text and data mining exception allows for the mining of text and data by anyone (not limited to research organisations or cultural heritage institutions) as long as the rights owner does not ‘expressly reserve’ these rights. No indication was provided on what an ‘express reservation’ means or on whether it should specifically mention text and data mining. Neither of the exceptions require paying compensation to right holders.
Preservation of cultural heritage
Before the transposition of the Directive, Dutch copyright law foresaw an exception to copyright which allowed cultural heritage institutions and some educational establishments to make copies of works in their collections for preservation purposes without rightsholder permission. This included making both physical (for works threatened by imminent decay) and digital reproductions, without a maximum number of copies.
The transposition of the preservation exception brought various changes. Materials that can be preserved now also include databases, but educational establishments unfortunately are no longer beneficiaries (though archives and libraries of educational establishments are). The condition of imminent threat of decay justifying physical copies no longer applies.
The exception only applies to materials that are permanently held in the collections of the cultural heritage institution, understood as for example ‘owned’ or received in a loan for an indefinite period of time. A provision was added that a contractual clause that forbids a cultural heritage institution to make copies for preservation purposes is not enforceable. Unfortunately technological protection measures can still block the possibility to make copies for preservation purposes.
Digital and cross-border teaching activities
Dutch copyright law already foresaw an exception allowing the use of copyright-protected materials for teaching purposes by educational institutions, without the need to ask for permission. This was subject to remuneration (except for when using databases), and implicitly included digital and online uses. When transposing the Directive, the Dutch legislator chose to update this exception instead of switching to a licence-based model.
As a result, educational establishments can now make use of copyright-protected materials for teaching purposes, on their premises or elsewhere (made implicit), offline and online, including via ‘secure electronic environments’ for pupils, students and teaching staff. This can be across-borders too, and cannot be overridden by contractual measures.
The Dutch legislator also brought in conditions such as the need for works to have lawfully been made available to the public, and the need to respect moral rights. Only part of a work can be used unless it concerns a short work or a work of visual or applied art or a photograph.
Out of commerce works
Out of commerce works are in copyright works in collections of cultural heritage institutions that are no longer, or were never, available commercially. In line with the Directive, Dutch copyright law now provides for a system based on a licence and an exception to allow cultural heritage institutions to make out of commerce works available online. The text does not introduce any definition of out of commerce works beyond the text of the Directive, but the Dutch Minister of Education, Culture and Science may introduce regulatory measures in this area.
In line with the Directive, the Dutch text establishes that rights holders can opt-out of their works being shared under this system, and adds that the cultural heritage institution at play must be given a reasonable term to act upon it. No remuneration is required for lawful uses of the work on the basis of the exception to copyright.
Even though Member States had the possibility of setting up a national database to publicise the works that they intend to make available under this system, the Dutch legislator chose not to establish one, and cultural heritage institutions and collective management organisations (responsible for the sharing of information when the licensing system is used) can share information directly with the EUIPO portal.
Dialogues between the Ministry of Justice, rightsholders and cultural heritage institutions are taking place on the establishment of periods before which all works are by default considered to be out of commerce, for example of 50 years for books; and the extent to which a collective management organisation is representative enough and can issue a licence. Cultural heritage institutions argue that collective management organisations should not be considered sufficiently representative of works that were never in commercial circulation, including unpublished works.
The Public Domain
The Dutch legislator considered that the provision on the public domain did not need to be transposed, as Dutch law was already in line with it. In the Netherlands, no neighbouring rights exist for non-original photographs or non-original digital copies of works of visual arts in the public domain.
Find out more
You can read more about the transposition of the CDSM Directive in the Netherlands in this Communia tracker and this parliament web page containing all legislative and parliamentary documents (in Dutch).
If you would like to learn more about copyright and digital cultural heritage, join the Europeana Copyright Community and read our CDSM Directive Pro news series.
