zaterdag 16 mei 2015


Hereunder I will discuss the protection of computer programs, apps and games (software) by copyright law in the Netherlands, the object of protection, the term of protection and exclusive rights granted to the author in case of copyright protection. Further I will discuss fictional ownership of copyright and if, and under which circumstances, a company can be the owner of copyright protected software.

Applicable laws
The protection of software by copyright in the Netherlands can be found in  the Dutch Copyright Act (‘Auteurswet’, hereafter: ‘Copyright Act’). The Copyright Act implements  Council Directive (91/250/EEC) 14 May 1991 on the legal protection of computer programs (hereinafter: ‘Software Directive’) into the Copyright Act (Chapter four).
Since the Software Directive is implanted into the Copyright Act itself, the rules for the legal protection of computer programs is the same as for the "classic" works that fall under copyright protection, e.g. books, architecture, music, scientific works, etc.  (‘works’). Please note that Chapter four of the Copyright Act embodies special provisions with regard to computer programs. Please note that with regards computer games, products that contain software a combination of copyright rules and -specific- software copyright rules apply. An image or video in a computer game will be protected by the normal "classic" copyright rules and as far as "code" (or any expression in any form is concerned, also by the rules pertaining to computer programs. A translation of the Dutch Copyright Act in English can be found here:

Object of protection?
In Article 10 of the Copyright Act it is stated that "works", in the Copyright Act include(amongst other things) computer programs and the preparatory material.  In the Dutch Copyright Act all forms of computer programs, (source code, firmware, object code, embedded software, obfuscated code, decompiled code) are protected. In fact the expression of a computer program (in any form whatsoever) is protected. Please note that -the same as in "classic" copyright- that concepts and ideas that are "behind" a program are not protected by copyright. E.g. the idea of buying a product with "one click" is not copyright protected, neither the idea of a "social network site".

Since 1985 the Supreme Court uses a composite test: a work must have an ‘own, original
character’ and ‘bear the personal stamp of the maker’. In the landmark Endstra case (Amsterdam Court of Appeal, 16 Juli 2013 (Endstra heirs vs. Nieuw Amsterdam Publishers)), it clarified that the first means ‘the form may not be derived from another work’.The work must be discernible from other works and not have been copied; novelty however is not required. The requirement that the production must ‘bear the personal stamp of the maker’ means ‘that the form must be a result
of creative human labour and thus of creative choices, so that it is a production of the human mind.’ There should be a creative performance of the author that is reflected in its work.

Exclusive Rights
The author of a work has the exclusive right to publish the work and to reproduce it. However the publication and reproduction of a work are subject to the limitations of (copyright) law.

Term of Protection
All works that are eligible for copyright protection, including computer programs, are protected for 70 years commencing January 1st following the death of the author. In case there is more than one author, the terms start following the death of the last surviving author. For companies the term begins on the January 1st following the first publication.

Fictional Authorship, Authorship by a company

Article 6, 7 and 8 Copyright Act state:

Article 6:

"If a work has been made according to the draft and under the guidance and supervision of another person, that person shall be deemed the author of the work."

Article 7:
"Where labour carried out by an employee consists in the making of certain literary, scientific or artistic works, the employer shall be deemed the author thereof, unless otherwise agreed between the parties."

Article 8:

"A public institution, association, foundation or company which communicates a work to the public as its own, without naming any natural person as the author thereof, shall be regarded as the author of that work, unless it is proved that the communication to the public in such manner was unlawful."

Please note that according to article 7 the employer shall be deemed the author of work carried out by an employee consists in the making of certain literary, scientific or artistic works thereof, unless otherwise agreed between the parties. The foregoing implies that in a  labour contract it should be specified what kind of works an employee should create as part of his/her job, otherwise the employer may have no rights to the work (even in case the work has been created during office hours). Further, please note that in a free-lance/work for hire situation, parties should always make an agreement with regards copyright. The party that pays for the creation of a certain work is not automatically the owner of such work.

Computer programs, apps, games, etc (software)  can be copyright protected in the Netherlands, and almost all software in fact copyright protected in the Netherlands. This as for most of the software it is clear that the author has made creative choices whilst creating the computer program, apps, games, etc.

A company can be the owner of the copyright of software. A company is regarded as the author of a certain work (e.g. a computer program), in case the labour carried out by one or more of its employees consist of the making of certain works (e.g. computer programs).  In case a company is regarded as the author of a computer program, it owns the copyright of that computer program.

Amsterdam, 16 May 2015

Quirijn Meijnen

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