In the weekend of 2 June 2012 De Telegraaf had a supplement with the program information for one week. It was announced in the newspaper that this supplement would be included in De Telegraaf throughout the 2012 European Football Championship. On 13 June 2012, the Court in preliminary relief proceedings rendered a judgment in the proceedings initiated in this regard by 'the broadcasters' NPO (representative of the public broadcasters), and the commercial broadcasters SBS and RTL.
For years, the broadcasters have had a monopoly on the program information, based on the so-called copyright protection of non-original writings and on provisions in the Media Act. Already since the 1960's, program information has been the subject of much litigation. To date, it has always been ruled that the broadcasters may successfully invoke the protection of non-original writings (a kind of light copyright) with respect to the copying of program information. Unlike in the case of copyright, protection of non-original writings does not require "originality in the sense that it is its author's own intellectual creation". This protection is also more restricted than protection under copyright law; only direct derivation is not permitted.
Lately, however, this ground for the protection of program information has come under fire. The Dutch Lower House of Parliament has adopted a bill in which the relevant sections in the Media Act are repealed. After the entry into effect of the law amendment the public broadcasters will be obligated to make the information available for a reasonable consideration. In addition, the European Court of Justice rendered a judgment in the Football Dataco case (March 2012) on the basis of which it must be assumed that the protection of non-original writings in respect of databases is in conflict with European law.
Against this background, De Telegraaf took the position that it was free to publish the weekly program information without permission of the broadcasters. The broadcasters did not agree and took the case to court.
Protection 'Full' Copyright
First and foremost, the broadcasters invoked the so-called "full" copyright for their program information. De Telegraaf had only copied the starting times and titles of the programs from the information: the program descriptions had been edited by De Telegraaf itself. The Court in preliminary relief proceedings ruled that the program information is only a description of "what has been created by the selection and arrangement of the material to be broadcast." According to the Court, the program information as such (a list of programs in which starting times and titles are mentioned) is therefore not a work within the meaning of the Copyright Act and thus does not enjoy "full" copyright protection.
Protection of Non-original Writings
A second point of controversy was whether after the Football Dataco judgment the broadcasters could still successfully invoke the copyright protection of non-original writings in respect of program information. The key question was whether the Dutch practice of applying the protection of writings to program information was in conformity with European legislation. Already since the introduction of the Database Directive experts from the field have been disputing that this is the case. They argue that the Database Directive only permits "full" copyright protection of databases, as a consequence of which the protection of non-original writings applied to databases is in conflict with this Directive. Recently, the Football Dataco judgment of the European Court of Justice has explicitly confirmed that under the Database Directive no other copyright protection for databases is possible than full copyright protection.
Seperation of Powers
Although in its judgment the Court in preliminary relief proceedings did not explicitly express an opinion in this regard, the Court did take into account that after the Football Dataco judgment the protection of non-original writings in respect of databases (and therefore also in respect of the database with program information) is in conflict with the Database Directive. The Court put the ball in the court of the legislator, by ruling that the choice to protect the program information of the broadcasters has been a political one and that − if it must be concluded that this is no longer possible after the Football Dataco judgment − the legislator must now take action to change this. The Court in preliminary relief proceedings considered the following, inter alia:
The principle of the seperation of powers compels the court to exercise restraint when anticipating a possible amendment of the law. (...) These are clearly statutory provisions that intend to protect the Broadcasters. This protection is a political choice. (...) This leads to the opinion that an anticipating interpretation as argued by De Telegraaf et al. cannot be accepted in this case. This argument is even more convincing since this is a statutory provision inspired by political considerations. In such a case politicians will have to speak first and the Court may not anticipate the political decision-making process.
The Court does have an obligation to make every effort possible to interpret Dutch law in conformity with the Directive. However, this obligation meets its limit at the moment that the Court must interpret 'against the law' (contra legem). In this case the Court ruled that the current law prevents it from denying the broadcasters the protection of non-original writings at this moment: "for the time being the Court in preliminary relief proceedings [deems] it insufficiently plausible that the Court in proceedings on the merits will rule that De Telegraaf is now (already) entitled to publish the program information for the following week". Subsequently, the Court in preliminary relief proceedings allowed the claims of the broadcasters. De Telegraaf may not publish the program information without the permission of the broadcasters any more.
Not the Final Chapter
This is certainly not the final chapter in this matter. The discussion about program information being protected or not (any more) continues. At this moment, a bill has been presented for discussion in the Dutch Senate, which will repeal the sections about program information (2.140 and 3.28) from the Media Act. Questions have been posed in the Senate about the relation between the Dataco judgment and the protection of program information. The Minister has answered the Senate that the Copyright Commission will examine this matter.
In this case De Telegraaf was assisted by Jens van den Brink, Christien Wildeman and Annemieke van der Beek of Kennedy Van der Laan.
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