Copyright law and the copyright law: the case Vermande vs. Bojkovski
In some respects Dutch copyright law is not as advanced as its American counterpart. For instance, in the US publications of the federal government are in the public domain. This is for example why people get to know so much about space: anyone can republish images that were originally published by NASA.
In the Netherlands, political parties have gotten no further than discussing whether perhaps public television broadcasts should be “freed”.
Dutch copyright law (English version in PDF after link) does make an exception though for “laws, decrees or ordinances issued by public authorities, or [for] judicial or administrative decisions”.
When Richard Stallman speaks of copyright law, he refers to it as an industry regulation. Copyright, he claims, is a balance between two public interests, and it was won so easily, because ordinary citizens did not have to give up anything; ordinary citizens typically did not own printing presses in the 17th, 18th and 19th centuries. By giving up the right to copy, they essentially gave up nothing. Copyright regulated practices in the publishing industry.
When people finally do find a use for an under-used right, they are going to want to use it. And as soon as they do, those on the other end of the bargain are going to cry foul. The last decade copyright law has expanded in the US and the EU in an almost obscene manner, demonstrating that it is the people that drew the short end.
An interesting demonstration of an under-utilized right, where a gate-keeper lashes out at anyone who wishes to utilize the right, is the case of Vermande vs. Bojkovski. In the 1990s, Pavle Bojkovski, a law student from Amsterdam, started a website called Wetten.nu, which published law texts. The site ceased to exist in 2001, three years after the decision in Vermande vs. Bojkovski, but can still be consulted in the Wayback Machine.
Thus far, the publication of laws, though officially not restricted by copyrights, had been a monopoly of the former state printer, SDU. That is, Dutch law only becomes valid after publication in a newspaper called Staatsblad (lit. paper of the state), which is published by a private company called SDU B.V. (B.V. = incorporated). There were (and are) other publishers of legal texts, such as Wolters Kluwer—I do not know whether they licensed their versions from SDU.
Anyway, citizens who wanted access to the text of the law had to go through a process that generated money for publishers. For instance, you went out and bought the Staatsblad, or you went to the public library and looked up some of Wolters Kluwer’s tomes. Somebody, somewhere had to be paid to deliver this information to you.
This wasn’t necessarily a bad system at the time. The people had no easy way of accessing documents anyway, other than buying printed copies or looking them up in the library. The internet, and especially the web, changed this of course.
Bojkovski made it possible to bypass the network of gatekeepers. You could go to his website, and all you needed to pay for was the transfer of bits. There was no premium to the content itself, for which you had already paid in the form of taxes.
Undoubtedly, it was this circumvention that raised the ire of SDU. Through one of its subsidiaries, Vermande, it sued Bojkovski. It claimed that Bojkovski had infringed copyrights, database right, and that he had acted against the Terms and Conditions under which Bojkovski had acquired the law texts from SDU.
In other words, this was going to be a walk-over for Bojkovski, because the law states that the text of the law is not copyrighted.
In reality, it was a close shave. That Bojkovski had copied the text from Vermande’s commentaries to the law, instead of from the Staatsblad, should have been immaterial. Nor should it have been important that SDU made a substantial investment collecting law texts and making them accessible.
Unfortunately, the European Union passed a directive that grants so-called database rights that do just that: make it illegal to republish information that was collected in a database.
The judge in Vermande vs. Bojkovski intimated that he was inclined to find for Vermande (+ English abstract), except that the Dutch government had at the time not yet been able to decide how to turn the E.U. directive into national law. The judge was not going to second-guess the government, and so he decided the case solely on the copyright issues. Bojkovski won.
Commentaries at the time not only sided with the judge’s narrow interpretation of database law, but also predicted that it was impossible for the government to draft a database law that would excluded state publications.
The Dutch government has done just that, though; according to Bernt Hugenholtz (linked before):
The case eventually led to the adoption in the Database Act of a provision (Article 8(1) ) that rules out government ownership of database rights in respect of laws, decrees, ordinances, as well as court and administrative decisions. The provision is supposedly based on the catch-all provision of Article 13 of the Directive, that leaves ‘laws on […] access to public documents’ intact.
Restricting a citizen’s access to the texts of the laws by which he is governed sounds like the stuff that science-fiction stories are made of, but without an enterprising law-student who was willing to take a stand, that might very well have become practice in the Netherlands.