From For the Hearts

The important divide within intellectual property right is when a something is a literary or artistic work, because only these are protected by law. Here are the essential properties that has to be fulfilled to meet the criteria of a valid artistic work. The work has to be original. The ideas in the work does not have to be original, but the form of expression must be an original creation of the author. It has to be created by a human, and it has to be produced from a conscious personal and creative effort. Further follows that no copy is protected. Passport photographs are an example of works that are not covered by copyright because they are produced in a standard way. Passport photographs are covered by portretrecht – portrait right. In practical law there is often a demand that a work must have a distinctive character, understood in the way that it must be different from other prior artistic efforts if it is to achieve protection. It is still discussed whether a work should meet certain quality criteria to be protected, but none are required as of this present. If the conditions for originality and distinctive character are meet, then the creative effort is an artistic work, and it achieves legal intellectual property protection.

A work is not patentable. Patents serve to protect processes, machines, and material inventions. Likewise a name fall under trademark law. In Dutch law copyright is called auteursrecht. Auteursrecht includes exclusive publishing rights and allows the author to make and sell copies of his or her work. It also includes the exclusive right to make products derived from the copyrighted work and to publicly display the work (or to grant permission to do so). This is normally recorded in a license contract between someone who has created a copyrighted work and someone who wishes to use that work. Aside from those mentioned above, there are a few legal differences between auteursrechten and copyrights. One noticeable difference is that auteursrechten grants more rights to employees over intellectual and other property created at work. Artists and musicians (not just the company with distribution rights) are also granted the right of resale, which means they are entitled to a royalty each time a copy of the work is published or exhibited. This is known as naburige rechten literally meaning »neighboring rights«. Auteursrechten, like the French idea of droits d’auteur, implies not only legal but also moral rights. An author is theoretically given, in addition to the right of ownership, the right to be recognized for the work rather than being criticized for it. Regardless of whether property rights are allocated to the publisher or to the author, the author retains this moral right:

Berne convention. Article 6bis. §1

Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

Copyrights can be bought and sold. An author can transfer his or her copyright to someone else using securitisatie, at which point the author receives the current value of future copyright revenues at the time of public presentation. The author of a work always retains certain rights, even if the copyright is transferred or renounced: the right of the author to be mentioned in, on or near the work is the best example. These rights are called persoonlijksheidsrechten – personality rights. These rights also last until 70 years after the death of the author.

[edit] Out of your hands

Generally, the owner of a copy of a copyrighted product can do with the copy as he or she pleases, even without actual ownership of the copyright, provided that no copies are made and the product is not modified. Those who acquire modified copies from the copyright holder are also bound by these limitations. There are some limits on what the owner of a copy can do with it. For example, public displays of the creative work are regarded as a form of copying. However, both Dutch and Belgian law allow for citaatrecht – quotation right. This allows the use of portions of a copyrighted work under a strict set of conditions. Quotation rights are more limited and demarcated than the concept of fair use.

Berne convention. Article 2. §1

The expression »literary and artistic works« shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

The Berne Convention is still in effect today. When a work is finished (defined as being written or recorded on a physical medium), the author automatically receives all exclusive rights for that work as well as derivatives, unless and until the author explicitly renounces those rights or the copyright expires. The expiration time differs from country to country, but according to the Berne Convention the minimum time is the lifetime of the author plus 50 years. In the Netherlands the term is 70 years after the death of the author.

[edit] Copies

Any specimen or technical representation of the work is the work. For instance when you download a comping picture from a stockphoto company, that unseeming low-res and watermarked image is still the original image, and is as such protected to the same extend as the original negative.

It should be noted that it is, fully possible to escape the scope of a photographic picture by altering it so that the original picture is not readily identifiable as the origin of the new picture. You could for example cut up a several pictures in small enough pieces and use those pieces to create a collage, without infringing upon anyone’s copyright. Or you could cut out the skyline from one picture and use it in your own picture.