Legislation and Materials
Copyright Act, Unofficial English translation by Dutch government, 22.06.2006.
Report on The Netherlands by Euro-Copyrights.org Kamiel Koelman & Menno Briët, Computer/Law Institute, Free University of Amsterdam, Last Update: 1 August 2004.
Bernt Hugenholtz, 'The Implementation of Directive 2001/29/EC in The Netherlands' RIDA (Revue Internationale du Droit d'Auteur), 2005-206, p. 117-147.
Sjoera Nas, Bits of Freedom, Report on EUCD in the Netherlands, in Ian Brown (ed.), Implementing the European Union Copyright Directive, by-country report, 2003.
General Remarks on Implementation
In The Netherlands the implementation of the legal protection of DRM follows the wording of the directive almost exactly. Protected against circumvention are "technology, equipment or components whose normal use would include the prevention or limitation of actions in relation to works and that have not been permitted by the author or his right-holders", when "purposive".
The definition has the consequence that not only an act of circumvention that entails a copyright infringement is protected but any act that the author or his right-holders didn't authorize. This means that technological measures that prevent people from using a work under any of the exemptions of the Dutch Copyright Act are also protected. Most notably DRM circumvention with the purpose of making a private copy is not allowed.
The implementation of the facilitation requirement of Art. 6 (4) of the directive in Art. 29a (4) is less direct. The power to set rules if right holders fail to voluntarily facilitate that beneficiaries of exemptions can actually benefit from these exemptions is delegated to the government. No such rules have yet been set.
The Minister expects the rightsholders and users to be able to come to a reasonable agreement. In the explanatory memorandum some situations are being named in which the government might take action. “The justified expectations of consumers may play a role, as well as the need of market parties to be able to design, produce and market systems in which standardized access to – and effective use of – protected works is guaranteed.“
Illegal circumvention is an unlawful act under civil law and is not sanctioned under criminal law. Recently the Netherlands opposed again to the introduction of such criminal sanctions. The Dutch Parliament stated on 28 June 2006 that the European Commission has no competence to propose a new directive that is focusing on criminalizing intellectual property offences, with reference to the principles of proportionality and subsidiarity.
Article 29a does not apply to the technological protection of software products. Technological protection of software is covered by (the older) Art. 32a of the Dutch Copyright Act.