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1.
The test of Art. 25f(2) Copyright Act – which stipulates that a provision is voidable if unreasonably onerous for the author – should be lighter than under Art. 6:2 of the Civil Code.
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2.
The test of Art. 25f(2) Copyright Act involves examining the facts that prevailed before or at the time of the conclusion of an agreement (ex tunc), not applying to facts that postdate the conclusion of a contract.
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3.
The assessment of whether the application of a term is unacceptable according to standards of reasonableness and fairness, unlike the assessment of whether a provision is unreasonably onerous within the meaning of Art. 25f(2) Copyright Act, may also take into account facts that postdated the conclusion of the contract, such as the way in which the agreement was implemented.
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4.
The production is central to the definition of “phonogram producer” (Art. 1(d) Law on Related Rights).
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5.
The person who undertakes the organization of the first recording and is financially responsible for it is to be regarded as the phonogram producer. Such can be, as is the case here, a DJ.
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Notes
Midden-Nederland District Court, 20 September 2017, ECLI:NL:RBMNE:2017:4775.
Arnhem-Leeuwarden Court of Appeal, 24 December 2019, ECLI:NL:GHARL:2019:11117.
Kamerstukken [Parliamentary Papers] II 2011/12, 33308, No. 3, pp. 21–22.
Kamerstukken [Parliamentary Papers] I 2014/15, 33308, C, p. 11.
Kamerstukken [Parliamentary Papers] II 1988/89, 21244, No. 3, p. 10.
Kamerstukken [Parliamentary Papers] II 1988/89, 21244, No. 3, p. 1.
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, Rome, 26 October 1961, Treaty Series 1986, 182.
Convention for the Protection of Producers of Phonograms against Unauthorised Copying of their Phonograms, Geneva, 29 October 1971, Treaty Series 1986, 183.
World Intellectual Property Organisation Convention on Performances by Artists and on Phonograms (“WPPT”), Geneva, 20 December 1996, Treaty Series 1997, 319. See also Records of the Diplomatic Conference, Geneva: WIPO 1999, Vol. I, pp. 250–252.
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Translated from the Dutch by Gwyneth Little.
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Appellant v. Spinnin Records B.V. and Musicallstars Management B.V. (MAS); Spinnin Records B.V. and Musicallstars Management B.V. (MAS) v. appellant Dutch Copyright Law, Art. 25f(2); Dutch Civil Code, Art. 6:2 and 6:248; Law on Related Rights, Art. 1(d). “Spinnin Records”. IIC 53, 780–785 (2022). https://doi.org/10.1007/s40319-022-01195-6
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DOI: https://doi.org/10.1007/s40319-022-01195-6