The creative industry plays a valuable role in the Netherlands, contributing substantially to the country’s economy and cultural heritage. For this reason, the Dutch government regularly introduces measures to enhance the protection of the rights of creators and performers. Recently, the Dutch government wants to amend the Dutch copyright system to strengthen the position of creators and performers in negotiations with their operators, such as labels, publishers, and alike. In this article, we’ll examine the suggested changes brought by this amendment as well as their implications for creators and operators.
The changes brought by these amendments can be categorized into three main areas:
- Collective Negotiation of Fair Remuneration
- Dispute Resolution Mechanisms
- Collective Agreements for Video on Demand
Collective Negotiation of Fair Remuneration
When entering a contract with an operator, the maker signs away a percentage of their rights over their works. This translates to entrusting operators to properly exploit such works, by having the makers’ best interest as a main objective. In some cases, however, operators can be found to exploit the works, reap the rewards, and yet fail to remunerate the makers appropriately. So far, this has been the result of unequal bargaining power between the parties.
As of 26 April 2023, the law now enables creators and performing artists to collectively negotiate fair remuneration for granting operators permission to utilize their works (exploitation rights). This negotiation can either take place individually or collectively through a representative organization. Operators [exploitanten] are also mandated to provide clear information to makers and performers regarding the nature and extent of the exploitation rights being granted.
This revised provision allows makers and artists to terminate a contract without having to demonstrate proof of non-performance, in case the operator does not (or does no longer) publish the work or performance. The amendment aims to address the issue of makers often being the weaker party when granting exploitation authority by offering them greater freedom and protection.
The amended law thus gives creators and performers more control over the use of their work or performance. This means they will be able to ensure their creations are exploited fairly and with their consent.
Dispute Resolution Mechanisms in the Copyright Contract Law Act
The law now requires operators who receive public funding to join a Disputes Committee to resolve conflicts with affiliated makers. This means that they will have to engage in more transparent and efficient conflict resolution mechanisms.
This is an important step for makers as it enables them to better protect their rights, and ensure they receive fair treatment. In the past, creators and performing artists may have found it difficult to effectively resolve disputes with operators. Especially, if the operator held significant power and resources.
The requirement for operators to join a Disputes Committee is a significant development, as it provides a neutral third-party mediator to help resolve disputes in an accessible and efficient manner. This is particularly beneficial for makers, who may not have the financial resources to engage in lengthy legal battles. By participating in a Disputes Committee, makers can protect their rights, seek fair compensation, and ensure their work is not exploited without proper remuneration.”
Collective Agreements for Video on Demand
The provision related to video-on-demand services is a crucial addition to the Copyright Contract Law Act amendment. As more and more people turn to online streaming platforms to watch films and other works of art, it is imperative that filmmakers and performers are compensated fairly for their contributions.
The new collective contractual agreements that can be made between filmmakers, performers, and producers/operators will help ensure that this is the case. By basing the remuneration on how often a film work is streamed, the creators can be sure that they are receiving fair compensation for the use of their work.
This provision also has the potential to change the dynamics between creators and operators. With a more equitable approach to compensation for video-on-demand services, operators are incentivized to provide better and more diverse content to their consumers. This means that the quality of the creative industry can improve as a result of this amendment.
Additionally, this change may encourage more creators to produce works specifically for the digital market, as they will have more certainty about their earnings from online streaming. Overall, this provision has the potential to positively impact the entire creative industry, from filmmakers and performers to producers and operators, by creating a more balanced and fair system of compensation.
Conclusion about the amendments to the Copyright Contract Law Act
These changes to the Copyright Contract Law Act are said to be welcomed by the creative industry as they are expected to have significant implications for both makers and operators. It depends a bit on your position and vision of the industry as a whole. The Council of Ministers has agreed to send the bill to the Council of State for advice. It will be made public when it is submitted to the House of Representatives.
The Dutch Government’s initiative to address issues of wrongful exploitation of creators and performers is commendable. The amendments have the potential to eliminate injustices in contractual relationships between makers and operators. It promotes fair, equitable, and mutually beneficial relationships that aim to benefit both parties. By providing greater protection for creators and performers, promoting better communication and dispute resolution, and enabling collective agreements for video on demand, the Dutch Government is paving the way for creating a more just and equitable creative industry.
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This article was written by Laura and Sander from Backstage Legal.