Copyright Advanced
Exploitation rights, moral rights, transfer to publishers, copyright duration, limitations, infringement, and neighbouring rights
3 · Types of Author's Rights
Copyright is not a single, indivisible right — the law treats it as splittable. At the highest level, it divides into two branches: exploitation rights (the economic side) and moral rights (the personal side).
a. Exploitation Rights
Dutch law historically named two exploitation rights: openbaar maken (communication to the public — covering live performance, radio/TV broadcast, and online distribution) and verveelvoudigen (reproduction — covering copying of scores, recordings, and mechanical rights). The European term "communication to the public" now covers much of this spectrum.
Concerts, recitals, broadcasts — administered by CMOs like BUMA.
Reproduction on recordings — administered by STEMRA / CMOs.
Staged dramatic-musical works (opera, ballet, music theatre) — licensed directly, not via CMOs.
Music combined with moving image — negotiated directly with publishers.
Creating arrangements or transcriptions requires the original rightsholder's permission.
Print rights: sale of physical or digital scores.
Rental of parts for orchestral performances.
Audio and audiovisual — administered jointly by CMOs and publishers.
b. Moral Rights
Moral rights protect the personal bond between a creator and their work. In the Netherlands (Art. 25 Auteurswet), they include:
4 · The Publisher & Transfer of Rights
Copyright is transferable — Art. 3 of the Dutch Copyright Act states that "copyright may be transferred wholly or partially." There are two fundamental forms of transfer:
Absolute transfer — rights pass for unlimited duration. Rare in modern contracts; the Dutch auteurscontractenrecht (author contract law) now largely restricts this in favour of licences.
Limited transfer — only the specified rights, for a defined duration and territory. Modern Dutch law means composers generally grant licences rather than full assignments.
The Copyright Act barely mentions publishers — they appear only once (Art. 9). Their legal basis is entirely built on the transfer/licence mechanism: the composer entrusts their work to the publisher by licensing exploitation rights. The publisher then uses those rights to distribute, promote, and collect royalties.
Inheritance of Rights
Upon the composer's death, exploitation rights pass automatically to the heirs according to inheritance law — no special action required. The heir can be one or more natural persons, or a legal entity (e.g., a foundation created specifically to manage the composer's estate).
Moral rights do not pass automatically. They lapse at death unless the composer has explicitly transferred them in a written last will or a signed and dated personal document.
5 · Priority & Duration of Protection
a. Priority
The general rule is first in time, first in right — the priority principle. Two edge cases arise:
- • A Hollywood composer's film score was found to resemble a Walloon jazz piece that had been broadcast just once on Belgian radio. The composer had been in Brussels at the time. The court found the opportunity to have heard it was sufficient — priority went to the Walloon composer.
- • The Lion Sleeps Tonight (1961, The Tokens) was a rearrangement of Mbube (1939) by South African composer Solomon Linda — who received nothing during his lifetime. His publisher later won recognition posthumously.
- • De Wielewaal ("Come outside everyone") — widely assumed to be a Dutch folk song and public domain — was actually written in 1927 by Andries Hartsuiker, who died in 1993. André van Duin properly paid the rights for his 1983 hit. The song is protected until 2063.
b. Duration of Protection
In the EU and the USA, copyright lasts life + 70 years. Works whose protection has expired enter the public domain and may be used freely. The term runs from 1 January of the year following the author's death.
- • Petite Suite (1902) — composed by Debussy (d. 1918), orchestrated by his pupil Henri Büsser (d. 1973). Protected until 2043 — 125 years after Debussy's death.
- • Rhapsody in Blue — George Gershwin (d. 1937), co-orchestrated by Ferde Grofé (d. 1972). Protected in the EU until 2042.
- • Turandot — Puccini (d. 1924), completed by Franco Alfano (d. 1954). Not in the public domain until 2024 — and Luciano Berio made a new completion in 2002, creating yet another layer of new copyright.
6 · Limitations on Copyright
Beyond limited duration, copyright law also carves out specific situations where rights cannot be exercised. The Dutch Copyright Act contains more than thirty detailed limitation articles. The most relevant for music are:
a. Private / Domestic Circle (Huiselijke kring)
Public performance is broadly defined — even performance in a "closed" gathering is copyright-relevant. The one exception: performances in the private domestic circle, limited to family, friends, or their equivalent, with no admission charged (Art. 12 lid 4 Auteurswet). For such performances, the composer's permission is not required and no payment is owed.
b. Private Copying
Making a copy "for personal practice, study or use" (Art. 16c lid 1 Auteurswet) is not copyright infringement. Copying a Spotify stream at home, downloading from YouTube for personal use, or photocopying from a book — all are permitted as private copies. However:
The private copy must remain private — selling it, lending it to others, or uploading it to the internet is infringement.
Device manufacturers (laptops, USB drives, recording devices) pay a levy per device sold — collected by Stichting Thuiskopie and distributed to rightsholders.
The exemption does not cover commercial copying services or bulk reproductions.
c. Lending Right & Quotation Right
Composers cannot block libraries from lending their works, but they are entitled to equitable remuneration. Libraries pay a collective fee; rightsholders cannot refuse lending, only claim the fee.
Short quotations for criticism, review, polemic, or scientific analysis are permitted — provided the source is credited, the excerpt has been lawfully published, and the amount quoted is proportionate to the purpose.
7 · Infringement
Copyright law exists on paper — but violations are widespread. When rights are exercised without authorisation, the rightsholder is deprived of income. This is called infringement.
Plagiarism Case Studies
The song was found to be almost identical to He's So Fine (The Chiffons, 1963). Harrison was found guilty of 'subconscious plagiarism' in 1976. All past and future royalties — roughly $1.5 million — were awarded to the original rightsholder. The court found he had internalised the melody without realising it.
He was sued for copying his own earlier work Run Through the Jungle — a song he had sold the rights to. Fogerty won by playing both songs live in court, convincing the judges of their distinctiveness. A rare case of self-plagiarism allegations.
In 2009 it was found that the famous flute riff copied the children's song Kookaburra Sits in the Old Gum Tree. The rightsholder was awarded 5% of royalties from 2002 onwards. A new version with a different flute solo was released in 2011.
Tech companies (Google, Facebook, Apple) built billion-euro businesses on user-uploaded content while claiming no liability. The EU DSM Directive (2019) closed this loophole — platforms are now responsible for unlicensed content and must actively license it or take it down.
8 · Neighbouring Rights
a. Why Neighbouring Rights Exist
Copyright protects the composer. But what about the performers who bring the work to life, or the record producers who finance and create recordings? When recorded music began replacing live musicians in radio stations, dance halls, and cinemas, performers lost work — so they demanded compensation. The result was a separate set of rights: neighbouring rights (naburige rechten — literally "adjacent rights", next to copyright).
The Netherlands was slow to adopt these: the Wet op de naburige rechten only entered into force in 1993, when European harmonisation made delay impossible. This allowed the Netherlands to join the Rome Convention (1961), the international foundation for neighbouring rights.
b. Who Holds Neighbouring Rights
- • Performers — all individual musicians in a recording hold neighbouring rights personally (legally: "uitvoerende kunstenaars").
- • Phonogram producers — the entity ultimately responsible for the production. Not the recording engineer or mixer — courts have consistently ruled these roles do not create neighbouring rights.
- • Revenue is split 50/50 between performers and producers.
- • Main actors (lead performers)
- • The film music composer
- • The screenplay writer
- • The producer of the first fixation of the film
In film, all contributors are presumed to have transferred rights to the producer — except the music. Music in a film always requires explicit written consent from the rightsholder. This preserves the synchronisation right.
c. Duration
In the EU, neighbouring rights last 70 years after first publication of the recording. In the US, works made for hire (including most film productions) are protected for 95 years from publication. International variation is significant — always check the applicable national law for each territory.
Coloured boxes throughout the chapters carry consistent meaning: