Prevent infringement of your copyright

If you write something, create a (digital) work of art or develop a video game, you automatically have copyright on it. This copyright is free, and you do not have to register or apply for it anywhere as a creator or author. The good news is that your work is protected by the Copyright Act only under these 3 conditions:

• Your work is personal and original: it should not resemble someone else's work. 
• It can be seen, read, heard or felt. In short, it can be perceived by the senses.
• It is not a new technical product or process, as that is covered by patent law.

If someone is using your work without your permission, they are violating your copyright, and you can take (legal) action. In this article, copyright lawyer Bauke van Laarhoven-Severs and NFT expert Dwayne Djontono explain how creators can better protect their work in the digital world. 

Copyright rules 

On 7 June 2021, stricter copyright rules came into effect, especially on the internet. These rules complement existing European rules, and reduce differences among countries in Europe. For example, creators get better copyright protection as well as fairer pay. In addition, major online platforms such as Facebook, YouTube, and Twitter have to monitor, filter, and, if needs be, even remove content. 

Bauke van Laarhoven-Severs, a lawyer, specialises in intellectual property rights, including copyright. She says the stricter rules are a challenge for platforms. “The more active a platform is, the more easily it can be held responsible and accountable for its behaviour. Such intermediaries are increasingly placed under a legal obligation to bar infringements and to more actively screen for certain content, such as tweets. An 'upload filter’ can help with this, but unfortunately it does not always manage, or, at the other extreme, it blocks content too often or too quickly. Since all uploads are checked by software, this is also difficult to control.” 

The stricter rules are therefore meant to benefit creators, but they are difficult to comply with, Van Laarhoven says. “And that is not all. The law compromises freedom of expression. People do not want that.”

Day stamps and NFTs 

To better protect yourself as a creator, Van Laarhoven says it is important to be able to prove very well when exactly you created your work. “There are many ways to do that, for example with what are known as day stamps. These days, that can all be done online.” She therefore always advises her clients to submit an i-DEPOT of a potentially copyrighted work. “That way, you can point to a date. If you then want to make a claim against someone, or if someone makes one against you, you can show: I already had copyright at that point.”

It is also possible to create a digital artwork or object, such as this collage (in Dutch) by American artist Beeple or the first tweet from Twitter founder Jack Dorsey, to be protected with what are known as non-fungible tokens (NFTs). These are unique, irreplaceable tokens to link ownership to digital and sometimes physical works. “This adds value to your work because there is only one person with a certificate of authenticity. On the other hand, scarcity is created through the ‘tokenisation’ of objects. Just look at Beeple's work: in theory, anyone can make a digital copy of it. But only one person owns the NFT for the work and therefore the real thing”, explains Dwayne Djontono. He is the founder of Sticky Banana, the NFT agency for makers, collectors, and inspirers. 

Barrier too high

According to Djontono, the barrier for creatives to take the plunge into the world of NFTs is too high. For instance, buyers of NFTs do not get the copyright of an object by default unless it is stated in the NFT. “Possession of an NFT therefore does not ensure that the person may also copy or distribute the underlying design, for example, by physically printing and selling the design. This still requires permission from the copyright holder first.” 

Moreover, anyone can 'mint' (create) an NFT and link it to a design created by you and available online. “That is detrimental to you as the actual creator. Someone else will then run off with your potential income.” Furthermore, there is a big legal gap between what is tolerated and what is not allowed when it comes to NFTs. “So you often see a physical object attached to a sale. This will be passed on when the NFT is sold. What we do know, is that the NFT technology is still in development, and that it is far from clear what is legally possible with it.” 

Legal steps

An advantage for creators, Van Laarhoven tells us, is that they may be able to fall back on their copyright. “This gives you the sole right to publish and reproduce your work. If someone else is going to do that for you, by sharing your work online or in a brochure, for example, the Copyright Act provides the creator with all kinds of rights. Think damages, a cease-and-desist order requiring the violator to stop what they are doing, or a transfer of profits to provide insight into all involved parties and figures.” 

As copyright is an intellectual property right, the Netherlands actually has a regulation covering the costs of litigation in this type of case. “This means that, in principle, the loser also pays the winner's legal fees. We have indicative rates for that. A simple summary procedure costs around €6,000, for example. So if you notice that someone else is using your work, I would definitely seek authority by having a summons letter drafted by a lawyer. This is also known as a warning letter. You normally get reimbursed for those costs if you win any ensuing proceedings.” 

Be sure of your case 

However, there is a barrier to going to court: Van Laarhoven says you should actually do that only if you are really sure of your case. “It is just how a judge views a case. Copyright cases belong to a grey area, and outcomes vary from case to case. My tip: a lawyer can give you advice beforehand on how a case might go, and make a good assessment.” 

Tips and tools

Once your work is on the internet and shared, it is sometimes difficult to find out whether your copyright has been infringed on, and if so, by whom. Especially when it comes to tweets, photos, videos and (hyper)links. “Then you first have to check: have I given permission for this disclosure or reproduction? And that, in fact, is the legal test”, Van Laarhoven notes. “With some products, you just have licence numbers. In that case, you can very easily go back and check: this was sold under licence by this and that party. But in other cases, it is a lot trickier.”

Finally, here are a few useful tips from Van Laarhoven: 

• Make sure you can prove what date you made your work on.
• Create a file. “This can be done, for example, by creating a mood board of what is currently trending and where you deviate from that”, says Van Laarhoven. Indeed, that is how you can make the case that you are original.” 
• Get counselling if your rights have been violated. You may still get reimbursed for the cost.
• And if you really want to protect your work, you could also choose to register your design rights. “That is just a bit more comfortable when you want to make a claim against someone.”

You can include provisions on intellectual property in your general terms and conditions. For example, you can stipulate that you do not allow your work to be copied.