Imagine that you instruct a web designer to build a website. The website designer designs and develops a ready-made website, including text and images, and delivers it within the agreed period of time. You are satisfied and pay the agreed sum. After a couple of months, you change the website’s design yourself. The web designer then sends you a warning in which he states that you are infringing his copyrights. You respond, stating that it is not the web designer but rather you who holds the copyrights, because it was you who paid for the website. After all, you were the one who “bought” the website, weren’t you? Who is right, according to Dutch copyright law?
Misconception
The situation set out above occurs regularly. This applies not only to websites, but to all works protected by copyright (texts, photos, images, software and the like) that are created on the instructions of another party. In practice parties frequently think that the client is the holder of the rights because he/she paid for the assignment. This is a misconception.
General rule: Copyrights are vested in the author
If it is not clearly agreed between the parties that copyrights or other rights must be transferred to the client, in principle copyrights are vested in the author of the work. Article 1 of the Dutch Copyright Act (in Dutch: Auteurswet) stipulates specifically that copyright: is the exclusive right of the author of a work of literature, science or art, or his successors in title, to make it available and reproduce it, except for the restrictions laid down by law.
In this case the web designer must – in principle – be considered as the person entitled to the copyrights to the (design of and source code behind the) website. The client only receives (implicitly or not) a licence to use the website. This means that the client may not make any changes to the website, without the consent of the web designer.
This is different only when the parties have agreed in writing that the copyrights to the website are transferred to the client. Payment of the agreed amount is irrelevant in that regard. Unless agreed otherwise, the aforementioned payment is only seen as compensation for the work performed for the benefit of the client by the web desinger and therefore not as the “purchase price” for the copyrights.
Transfer by deed
Copyrights must be transferred by way of a deed. This does not have to be a notarial deed; a standard written contract is sufficient. Further, the deed must be signed by the transferring party (here: the web designers) and accepted by the recipient (here: the client). A practical solution for the client is to arrange the transfer of the copyrights in the contract for services. The importance of owning the copyrights is that the client him-/herself can then determine what he/she shall do with the relevant work, without he/she having to ask for permission from (and pay extra to) the web designer.
Pay attention to moral rights
For a duly valid transfer of copyrights, parties must be prepared for the fact that not all rights connected with the work are transmitted to the acquirer. The author of the work continues to have, even after he/she has transferred his/her copyright, the so-called moral rights under Article 25 of the Dutch Copyright Act. Pursuant to this article, the author of the work retains the right to oppose, in short:
1. publication of his/her work without stating his/her name (Article 25 under a);
2. publication of his/her work under a name other than his/hers (Article 25 under b);
3. changes, alterations and/or amendments made by others to the work (Article 25 under c);
4. every deformation, mutilation or other degradation of his/her work (Article 25 under d).
Most of these moral rights may be waived. For instance, the author can waive the right to oppose the publication of his/her work without stating his/her name (sub a). The same applies to rights under sub (b) and sub (c). The right under sub (d) may not be waived. When copyrights are transferred, the acquirer would be wise to incorporate into the contract that the author waives his/her personality rights to the extent permitted by law.
Conclusion: make proper agreements
If a client desires to use and change a website developed on his/her instructions or another work protected by copyright independently of his/her contractor, the client should arrange in writing that the copyrights thereto are transferred to him/her. In this arrangement the client shall also have to ensure that the contractor/author – to the extent possible – waives his/her personality rights.
Ernst Jan van de Pas
