Art. 45d of the Dutch Copyright Act (hereinafter DCA) regulates the presumption of transfer of rights from the author to the producer of a film. The scope of this article has been the subject of discussion for years. authors and collective management organisations (hereinafter CMOs) have always argued that the presumption of transfer would not hold if the author had assigned the rights to his contribution to a CMO prior to the completion of said contribution. As early as 2011 [link], I remarked that I found this view to be inconsistent with the text and scope of the Copyright Act as well as the Berne Convention. On October 2nd, the Dutch Supreme Court gave judgment in the case Lira v. Ziggo. The Supreme Court confirms my long established position.
Art. 45d DCA states that unless the authors and the producer have agreed otherwise, the authors are deemed to have assigned their rights to make a film available to the public and reproduce it within the meaning of art. 14 DCA. to the producer, from the moment of completion. That moment of completion is defined in art. 45c DCA as the moment a film is ready for display. authors and CMOs have interpreted this moment of being ready for display as simultaneously being the moment of transfer of rights as regulated by art. 45d DCA. Therefore, they were of the opinion that, preceding the moment of being ready for display, authors were free to assign the rights to their contribution to the film to a third party, such as a CMO. Hence, Lira, the CMO for screenwriters, claimed a ban for cable operators to make the copyright-protected films it represents (that is, the films for which the screenwriter had contributed to the script) available to the public without its permission. The question was, however, whether it held those copyrights in the first place.
“In my opinion, this view undermindes art. 45d DCA. and it does not do justice to the rationale behind art. 45d DCA.” I said about Lira’s position. After all, the law explicitly states that only a written agreement between author and producer could negate this rule. An agreement between an author and a third party simply does not comply.
In addition, I argued, art. 45d DCA has been introduced to implement art. 14bis of the Berne Convention, which aims to safeguard an uninterrupted (international) exploitation of films, unhindered by authors’ prohibition rights.
On October 2nd, the Supreme Court gave judgement in this case and ruled as follows:
(i) that a transfer in advance to a third party, preceding the moment in which the author and the producer agree that the former shall contribute to the film, has no legal effect if the author has not entered into a written agreement deviating from art. 45d DCA with the producer; and
(ii) that the moment of transfer does not occur at the moment of completion, but rather that the presumption of transfer of art. 45d DCA applies from the moment the author agrees to deliver a contribution to the film with the producer.
The moment of completion is important to determine from which point onward the producer would be allowed to exercise his rights.