COPYRIGHT ISSUES AND THE INFORMATION SOCIETY DUTCH PERSPECTIVES F. Willem Grosheide IIB I ss to works onli 1.1 The right to information 1.1.1 General It may here be taken for grantedthat since the second half of the 20th century the Infomation Society may now be considered as running parallel to the 19th century Industral Society. One of the strik ing effects of this development particularly made possible by the spread of digital technology is the commodification of information, ie. today information, together with physical goods is the raw material socio-economic and cultural life in the industralised world. As a consequence, if the question of access to property and ownership of physical goods was a major issue in the 1gth century, this became equally true for the question of access to property and the ownership of infomation in the 20th century. Besides, since the rapid and broad extension of transborder socio-economic and cultural exchange is another characteristic of daily life in the late 20th century industrialised societies, the effects of the said commodification are at the same time experienced on a world wide basis. 3 Understandably, the indicated development has influenced and still influences the national and international legal environment with regard to access to information For the Netherlands, belonging to the Western part of the industrialised world, this means that its legal environment has gradually become less detemm ined by domestic and more by European developments. European developments on two levels: that of the Council of Europe, ie. the European Convention on Human Rights(ECHR), and that of the European Union, ie the Treaty of Rome/(EC Treaty). In light of the Treaty of Rome, adaptatin of national Dutch law to EU legis lative actions in the domain of copyright law and related law should be mentioned From the various directives that are in force in this respect in particuar mention should be made of the recent Copyright Harmonisation Directive(CHD). Apart from this, the legal environment has to be constantly adapted to transnational developments such those instigated by(non-)governmental bodies likeUNO, WTO and the WIPO. The Dr. F Willem Grosheide is Professor of Private Law and Intellectu engraaffInstitute/centerforIntellectualPropertyLawUniversityUtrecht(www.cier.nl)and practis ng lawyer at Van Doome Amsterdam. An effort is made to write ths paper as strictly as possible following a questionnare prepared by Professor Xavier Linant de Bellefonds, General Reporter, Faculte de Droit de Paris Xll, France, adding, however, issues that seem of partcular interest from a Dutch perspective. An early account of this development can be found n E.W. Ploman, L Clark Hamilton, Copyright-ntellectual property in the information age(London 1980) re on thi subject the follow Debora I Halbert Intellectual Property in the Information Age-The Politics of Expanding Ownership Rights(Quorum Books London 1999); Jeremy Rifkin, The Age of Access- How th Shift from Ownership to Access is Transforming Modem Life( Penguin Books London 2000)
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY: DUTCH PERSPECTIVES F. Willem Grosheide* III B 1 1 Access to works online1 1.1 The right to information 1.1.1 General It may here be taken for grantedthat since the second half of the 20th century the Information Society may now be considered as running parallel to the 19th century Industrial Society. One of the striking effects of this development particularly made possible by the spread of digital technology is the commodification of information, i.e. today information, together with physical goods is the raw material of socio-economic and cultural life in the industrialised world. As a consequence, if the question of access to property and ownership of physical goods was a major issue in the 19th century, this became equally true for the question of access to property and the ownership of information in the 20th century.2 Besides, since the rapid and broad extension of transborder socio-economic and cultural exchange is another characteristic of daily life in the late 20th century industrialised societies, the effects of the said commodification are at the same time experienced on a worldwide basis.3 Understandably, the indicated development has influenced and still influences the national and international legal environment with regard to access to information. For the Netherlands, belonging to the Western part of the industrialised world, this means that its legal environment has gradually become less determined by domestic and more by European developments. European developments on two levels: that of the Council of Europe, i.e. the European Convention on Human Rights (ECHR), and that of the European Union, i.e. the Treaty of Rome/(EC Treaty). In light of the Treaty of Rome, adaptatin of national Dutch law to EU legislative actions in the domain of copyright law and related law should be mentioned. From the various directives that are in force in this respect in particular mention should be made of the recent Copyright Harmonisation Directive (CHD). Apart from this, the legal environment has to be constantly adapted to transnational developments such as those instigated by (non-) governmental bodies likeUNO, WTO and the WIPO. The * Dr. F. Willem Grosheide is Professor of Private Law and Intellectual Property Law, Molengraaff Institute/Center for Intellectual Property Law University Utrecht (www.cier.nl) and practising lawyer at Van Doorne Amsterdam. 1. An effort is made to write this paper as strictly as possible following a questionnaire prepared by Professor Xavier Linant de Bellefonds, General Reporter, Faculté de Droit de Paris XII, France, adding, however, issues that seem of particular interest from a Dutch perspective. 2. An early account of this development can be found in E.W. Ploman, L. Clark Hamilton, Copyright-intellectual property in the information age (London 1980). 3. From the already abundant literature on this subject the following sources may be mentioned: Debora J. Halbert, Intellectual Property in the Information Age – The Politics of Expanding Ownership Rights (Quorum Books London 1999); Jeremy Rifkin, The Age of Access - How the Shift from Ownership to Access isTransforming Modern Life (Penguin Books London 2000)
GROSHEIDE Universal Declaration of Human Rights(UDHR), Treaty of New York(BUPO), TRIPS Agreement (TRIPS), and the WIPO Copyright Treaty(WCT)are examples of this state of affairs 4 Evidently, the commod ification of infomation in todays society has transformed it into a primary good which can be ranked alongside other primary goods such as rights, liberties, powers, opportunities, income and wealth. 5 In the same way as indiv iduals are assumed to want rights, liberties, powers and so on, they can also be assumed to want infomation. In fact, taking the different definitional approaches to information for granted, it may be said that when taken together they have a umulative impact suggesting that infomation is a primary good that is a foundation for the other kinds of primary goods mentioned. It may here be noted that the commodification of information is only one aspect of -what Rifkin calls-the metamorphosis in the organization of human relations from the production and commercal exchange of propertied goods to access to commodified service relationships. 7 As a consequence physical property is less relevant than in the past as it is no longer the sole reference point by which to measure economic activity. The dvent of electronic commerce is a determining factor in this respect, transfoming physical goods into services, while services themselves are now less perceived being comparable to sales and more as long-term relationships between servers and clients ow crucial information is in this respect is reflected by the fact that transactions with regard to infomation can be made using the computer network simultaneously for the formation of the contract and as a pipeline for the delivery thereof. Texts, music, software and mages offer examples of information products that are traded in such a way Particularly these products fit rather well within the terminology used by the EU with regard to electronic commerce: Information society services. 9 The commodification of infomation and the fact that it has become a primary good has appeared to have a major effect on the access to information since it changed its status from mere factual into simultaneously legal. Today, from a legal point of view An interesting analysi of thi state of affairs s offered by Anthony d'Amato, Dors estelle Long, International Intellectual Property Law(Khwer LawIntemational 1997). According to J. Rawb, A Theory of Justce(London Oford New York 1972), p. 72, prmary goods can be natural or social. In the contextof this paper the noton of primary goods refers to socia primary goods. Compare Peter Drahos, A Philosophy of Intellectual Property(Dartmouth Aldershot 1996) p 173-175. It s of course ckar that there i no one comprehensive defnition of nformation with a transdicphnary val d iy. On the contrary, the multitude of approaches to nformation indicates that t has a number of functions and rols t play, which differ accord ng to the perspective from which information is approached Rifkin, referred to innote 3, pp. 84-85 Compare F w. Grosheide, K. Boele-Woeki, Articles on Intemational Commercial Contracts and Intellectual Poperty -E Commerce Issue, Molengrafica 1999/2000(Vermande Lelystad 20005 P B Hugenholtz(ed)Copyright and Electroni Commerce(Kluwer Law intemational The Hague London Boston 2000). coes Control and Innovation under the Emerging EU Electroni Commerce= Framework, in F.w. Groshede, K Boele- Woelki, referred to in footnote 8, pp 212
GROSHEIDE 212 Universal Declaration of Human Rights (UDHR), Treaty of New York (BUPO), TRIPS Agreement (TRIPS), and the WIPO Copyright Treaty (WCT) are examples of this state of affairs.4 Evidently, the commodification of information in today’s society has transformed it into a primary good which can be ranked alongside other primary goods such as rights, liberties, powers, opportunities, income and wealth.5 In the same way as individuals are assumed to want rights, liberties, powers and so on, they can also be assumed to want information. In fact, taking the different definitional approaches to information for granted, it may be said that when taken together they have a cumulative impact suggesting that information is a primary good that is a foundation for the other kinds of primary goods mentioned.6 It may here be noted that the commodification of information is only one aspect of – what Rifkin calls – the metamorphosis in the organization of human relations from the production and commercial exchange of propertied goods to access to commodified service relationships.7 As a consequence physical property is less relevant than in the past as it is no longer the sole reference point by which to measure economic activity. The advent of electronic commerce is a determining factor in this respect, transforming physical goods into services, while services themselves are now less perceived being comparable to sales and more as long-term relationships between servers and clients. How crucial information is in this respect is reflected by the fact that transactions with regard to information can be made using the computer network simultaneously for the formation of the contract and as a pipeline for the delivery thereof. Texts, music, software and images offer examples of information products that are traded in such a way.8 Particularly these products fit rather well within the terminology used by the EU with regard to electronic commerce: Information society services. 9 The commodification of information and the fact that it has become a primary good has appeared to have a major effect on the access to information since it changed its status from mere factual into simultaneously legal. Today, from a legal point of view, 4. An interesting analysis of this state of affairs is offered by Anthony d’Amato, Doris Estelle Long, International Intellectual Property Law (Kluwer Law International 1997). 5. According to J. Rawls, A Theory of Justice (London Oxford New York 1972), p. 72, primary goods can be natural or social. In the context of this paper the notion of primary goods refers to social primary goods. 6. Compare Peter Drahos, A Philosophy of Intellectual Property (Dartmouth Aldershot 1996), p. 173-175. It is of course clear that there is no one comprehensive definition of information with a transdiciplinary validity. On the contrary, the multitude of approaches to information indicates that it has a number of functions and roles to play, which differ according to the perspective from which information is approached.. 7. Rifkin, referred to in note 3, pp. 84-85. 8. Compare F.W. Grosheide, K. Boele-Woelki, Articles on International Commercial Contracts and Intellectual Property – E Commerce Issue, Molengrafica 1999/2000 (Vermande Lelystad 2000); P.B. Hugenholtz (ed.) Copyright and Electronic Commerce (Kluwer Law international The Hague London Boston 2000). 9. Comp. T.P. Heide, Acces Control and Innovation under the Emerging EU Electronic Commerce= Framework, in F.W. Grosheide, K. Boele-Woelki, referred to in footnote 8, pp. 189-235
COPYRIGHT ISSUES ANDTHEINFORMATION SOCIETY information is perceived as a legal object in two different but relted respects information as(the object of)a human right on the one hand, and information as(the object of) a property right on the other. In a European context this means information in the sense of Article 10 EChr and related national constitut ional law on the one hand, and information in the sense of Articles 33, 81 and 82 EC Treaty and related national private law and competition law on the other. Obviously, the notions ofaccess to and a right to information have a different meaning depending on the terms of reference From the perspective of human rights, access to and a right to information refer to every individuals ability to participate in the public debate in order to benefit from a societys reservoir of information. At stake here is the passive side of the free flow of information principle. From the perspective of private av and competition law access to and a right to infomation refer to the possibility of fencing infomation in order to commercially exploit it using the legal technique of a property right. It is at this point that copyright la wand related aw such as the lega protection of databases- in the EU extensively regulated through various Directives come into play. The catch-phrase coined, which is usually in this respect determines that guaranteeing the free flow of infomation does not necessarily mean that access to information should befree It follows that access to infomation, depending on the perspective taken, refers to either a consumers or a producer's right to information. Paradoxica lly both rights ire acknowledged and guaranteed by intermational and national legal instruments. It is up to international and national govemmental bodies to strike a balance between the conflicting interests at stake. Things are even more complica ted since govemmental bodies have an interest of their own as prominent suppliers of public information. 10 1.1.2 The Netherlands In the Netherlands over the years the debate on the indicated issues has kept pace with the European and international discussion. This is well documented in many studies of a fundamental as well as a technical nature. For a ba lanced insight into the mainstream of Dutch thinking in this respect reference should be made to two reports issued by the Dutch Ministry of Justice's standing official advisory committee on copyright law and related issues. In these reports from respectively 1998 and 2001 the Comm issie Auteursrecht provides its views on the future of Dutch copyright law and related law in the light of the new international legal instruments that, at the time of publication were either already in force or were forthcoming. Particularly the general points of departure taken by the committee in its 2001 report are worth being quoted here. 12 F. Willem Grosheide, Copyright Law form a User's Perspective: Access Rights for Users EIPR Vol 23 Issue 7(2001 ). 321-325. Caroline Uyttendaele, Openbare informatie( Maklu Antwerpen 2002). See, in add tion to the already mentioned sources, the following studies F.W. Grosheide, Auteursrechtop maat(Kluwer Deventer 1986): AA Quaedv leg, Auteursrecht op techniek (Teenk Willink Zwolle 1987): P B. Hugenholtz, Auteursrecht op nformatie(Kluwer 213
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY 213 information is perceived as a legal object in two different but related respects: information as (the object of) a human right on the one hand, and information as (the object of) a property right on the other. In a European context this means: information in the sense of Article 10 ECHR and related national constitutional law on the one hand, and information in the sense of Articles 33, 81 and 82 EC Treaty and related national private law and competition law on the other. Obviously, the notions of access to and a right to information have a different meaning depending on the terms of reference. From the perspective of human rights, access to and a right to information refer to every individual’s ability to participate in the public debate in order to benefit from a society’s reservoir of information. At stake here is the passive side of the free flow of information principle. From the perspective of private law and competition law access to and a right to information refer to the possibility of fencing information in order to commercially exploit it using the legal technique of a property right. It is at this point that copyright law and related law such as the legal protection of databases – in the EU extensively regulated through various Directives - come into play. The catch-phrase coined, which is usually in this respect determines that guaranteeing the free flow of information does not necessarily mean that access to information should befree. It follows that access to information, depending on the perspective taken, refers to either a consumer’s or a producer’s right to information. Paradoxically both rights are acknowledged and guaranteed by international and national legal instruments. It is up to international and national governmental bodies to strike a balance between the conflicting interests at stake. Things are even more complicated since governmental bodies have an interest of their own as prominent suppliers of public information.10 1.1.2 The Netherlands In the Netherlands over the years the debate on the indicated issues has kept pace with the European and international discussion. This is well documented in many studies of a fundamental as well as a technical nature.11 For a balanced insight into the mainstream of Dutch thinking in this respect reference should be made to two reports issued by the Dutch Ministry of Justice’s standing official advisory committee on copyright law and related issues. In these reports from respectively 1998 and 2001 the Commissie Auteursrecht provides its views on the future of Dutch copyright law and related law in the light of the new international legal instruments that, at the time of publication were either already in force or were forthcoming. Particularly the general points of departure taken by the committee in its 2001 report are worth being quoted here.12 10. F. Willem Grosheide, Copyright Law form a User’s Perspective: Access Rights for Users. EIPR Vol. 23 Issue 7 (2001), p. 321-325. 11. Caroline Uyttendaele, Openbare informatie (Maklu Antwerpen 2002). 12. See, in addition to the already mentioned sources, the following studies: - dissertations F.W. Grosheide, Auteursrecht op maat (Kluwer Deventer 1986); AA Quaedvlieg, Auteursrecht op techniek (Tjeenk Willink Zwolle 1987); P.B. Hugenholtz, Auteursrecht op informatie (Kluwer
GROSHEIDE In its advice, the Copyright Committee has used some general points of departure on the basis of which it has developed the specif ic parts of the adv ice. Firstly, the Comm ittee sought to retain, where possible, the text and the system of the current 1912 Copyright Act. For the large part, this concerns open terms that have stood the test of time. In this context, the Committee has put forward proposals to fomulate the legislation in this field, preferably in a technology-neutral (or meda-neutral) manner. On the other hand, the Committee has tried to keep up with the technology sed in the Copyright Directive, along the lines of Instruction 56 of the Instructions for Rules and Regulations. After all, it must be prevented that the result of the Directive will be that the frameworks of terms in force in the aws and regulations of the Member States will diverge even more than they do already, while the intended objective of the Directive is hamonization. In addition, the Committee is of the opinion that no unnecessary amendments must be made in the context of the implementation. The Committee therefore recommends that the exploitation rights remain intact insofar as this is possible. The Committee also adv ises that the existing exemptions should be retained, at least where this is allowed by the Directive. This aspect is examined in further detail under 2. 4. 314 Rejecting the notion of as well as the need for a fundamental rev ision of the existing opyright Act DCA)(e.g. combining it with the Neighbouring Rights Act (NRA)) the committee has reta ined to its previous advice in which it was of the opinion that the existing two-tier approach under the dCa, providing the copyright owner with the reproduction right(verveelvoudigingsrecht )and the publication right (openbaarmakingsrecht) sufficient in order to cope with the three tier approach of the WCTand the Chd, providing fora reproduction right, a right of communication to the public, and a distribution right. Some other views by the Commissie Auteursrecht taken with regard to specific issues such as fair compensation, limitations, protection against the circumvention of technological measures, and obligations with respect to infomation on rights Deventer 1989); DJGi. Visser, Auteursrecht op toegang( Vuga Den Haag 1997). monographs w. Grosheide, Paradigms in Copyright Law, in Brad Sherman, Alan Strowel, Of Authors and Orgins( Clarendon Press Oxford 1994), pp. 204-233; dem, Toegang tot nformatie, in F w Grosheide, Communicatie- en Med iarecht(Ars Aequi Lbri2000), pp. 213-264 Egbert Dommering a.o., Infomatierecht(Oto ramwinckel Amsterdam 2000): P B. Hugenholtz, The future of copyright in a digital environment(Kluwer Law International The Hague, London, Boston 1996) articles There are abundant of articles deal ing with the subject at ssue. They are mainly published m specialised legal joumals such as AMI(formerly Informatierecht/AMI) IER; Median Copyright Committee, Advice concemng Copyright Neighbouring Rights and New Media (The Hague 1998, Copyright Committee, Advise on the Implementation of the EC Directive copyright and related rights in the infomation society (The Hague 2001), also admissible wwwmnjustnla beleiauteurswet/uk/. On this webs ite can also been consulted text in the Englsh language of legislation inforce on copyright aw and related law. See alo E.J. Arkenbout, E. Dijk, P.w. van Wick, Auteursrecht in de infomatiemaatschappj- Bouwstenen voor een Justitie trategie(Ministerievan Justtie Den Haag 2002) 14 Copyright Committee, Report 2001(no 23)
GROSHEIDE 214 In its advice, the Copyright Committee has used some general points of departure on the basis of which it has developed the specific parts of the advice. Firstly, the Committee sought to retain, where possible, the text and the system of the current 1912 Copyright Act. For the large part, this concerns ‘open’ terms that have stood the test of time. In this context, the Committee has put forward proposals to formulate the legislation in this field, preferably in a technology-neutral (or media -neutral) manner. On the other hand, the Committee has tried to keep up with the technology used in the Copyright Directive, along the lines of Instruction 56 of the Instructions for Rules and Regulations. After all, it must be prevented that the result of the Directive will be that the frameworks of terms in force in the laws and regulations of the Member States will diverge even more than they do already, while the intended objective of the Directive is harmonization. In addition, the Committee is of the opinion that no unnecessary amendments must be made in the context of the implementation.The Committee therefore recommends that the exploitation rights remain intact insofar as this is possible. The Committee also advises that the existing exemptions should be retained, at least where this is allowed by the Directive. This aspect is examined in further detail under 2.4.1314 Rejecting the notion of as well as the need for a fundamental revision of the existing Dutch Copyright Act (DCA) (e.g. combining it with the Neighbouring Rights Act (NRA)) the committee has retained to its previous advice in which it was of the opinion that the existing two- tier approach under the DCA, providing the copyright owner with the reproduction right (verveelvoudigingsrecht) and the publication right (openbaarmakingsrecht) sufficient in order to cope with the three tier approach of the WCT and the CHD, providing for a reproduction right, a right of communication to the public, and a distribution right. Some other views by the Commissie Auteursrecht taken with regard to specific issues such as fair compensation, limitations, protection against the circumvention of technological measures, and obligations with respect to information on rights Deventer 1989); D.J.G. Visser, Auteursrecht op toegang (Vuga Den Haag 1997). - monographs F.W. Grosheide, Paradigims in Copyright Law, in Brad Sherman, Alain Ströwel, Of Authors and Origins ( ClarendonPress Oxford 1994), pp. 204-233; idem, Toegang tot informatie, in F.W. Grosheide, Communicatie- en Mediarecht (Ars Aequi Libri 2000), pp. 213-264; Egbert Dommering a.o., Informatierecht (Otto Cramwinckel Amsterdam 2000); P.B. Hugenholtz, The future of copyright in a digital environment (Kluwer Law International The Hague, London, Boston 1996) - articles There are abundant of articles dealing with the subject at issue. They are mainly published in specialised legal journals such as AMI (formerly Informatierecht/AMI); IER; Mediaforum. 13. Copyright Committee, Advice concerning Copyright, Neighbouring Rights and New Media (The Hague 1998); Copyright Committee, Advise on the Implementation of the EC Directive copyright and related rights in the information society (The Hague 2001), also admissible on www.minjust.nl/a_beleid/auteurswet/uk/. On this website can also been consulted text in the English language of legislation inforce on copyright law and related law. See also E.J. Arkenbout, E. van Dijk, P.W. van Wijck, Auteursrecht in de informatiemaatschappij – Bouwstenen voor een Justitie strategie (Ministerie van Justitie Den Haag 2002). 14. Copyright Committee, Report 2001 (no 23)
COPYRIGHT ISSUES ANDTHEINFORMATION SOCIETY management, will be taken into account in this paper in Sections 2 and 3 It is of note that a proposal for implementation legislation was recently drafted and this is largely based on the 2001 report of the Commissie Auteursrecht. 5 In accordance with the report by the Comm issie Auteursrecht no specal attention will be given in this paper to the legal status of public data in view of copy right law and related law. It suffices to mention here that the dutch government takes the view at publicly gathered and held data should be freely(i.e. against production costs) availa ble to the public and should not in any way be commercia lised by public authorities 16 1.2 New informationalworks and the Internet 12.1 The inherent poperty of the new computer technology to provide information in a digital fom has placed a stra in on the function ing copyright law and reated aw in two respects. First, in reaction to the need of the day, ie the need for exclusive right protection of the computer programsand chips industry, digitising per se became an issue of concern for the intellectual property community, Focusing primarily on copyright protection for com puter programs and sui generis protection for chips, the outcome of that deba te is well known and has been extensively documented; it does not have to be repeated here. 7 It suffices here to recall that on a worldwide basis the courts first and national and intemational legislators second, overruled arguments holding that computer programs(and chips) would be better protected by the technology-related regime of patent law. That discussion has got momentum again since the US recently introduced patent law protection for business fomats and the e. The question is also much debated nowadays in the EU. s Secondly, the digits ing of trad itional works such as texts, images and music and making them availa ble through new physical carriers such as CD Roms or through transmission over the Internet raises various questions with regard to the appropriateness of apply ing the existing legal i.e. copyright regime to them. Concepts and principles uch as the originality criterion, fair use or the exhaustion rule have to be reconsidered. They are the subject of a great deal of debate with regard to database protection and music distribution on-line. 19 With reference to the actual importance This proposal can be consulted on the website indicated in footnote 13. The proposal and the draft legislaton are much critsized by interesting parties such as Stichtng Autersrechtbe langen Commentaar November 2001)and het Neder lands Uitgevers Verbond( Copyright Notice 2001A pp.1727 J.J. C. Kabel, Communicatie Commerce (Kluwer Deventer 1997): F w. Grosheide Toegang tot informatie, referred to in footnote 12. The debate i well descr ibed from a Dutch perspective n Quaedvleg, referred b in footnote Seeeg H.W.AM. Hanneman, Over de octroobaarhed van methoden voor de bedrijfsvoering BIE20002pp.40-45 Placed in an intemational context and with appropriate source references the relevant ssues are discussed from a Dutch perspective n among others F w. Grosheide, Mass-market Expboitation of
COPYRIGHT ISSUES AND THE INFORMATION SOCIETY 215 management, will be taken into account in this paper in Sections 2 and 3. It is of note that a proposal for implementation legislation was recently drafted and this is largely based on the 2001 report of the Commissie Auteursrecht.15 In accordance with the report by the Commissie Auteursrecht no special attention will be given in this paper to the legal status of public data in view of copyright law and related law. It suffices to mention here that the Dutch government takes the view that publicly gathered and held data should be freely (i.e. against production costs) available to the public and should not in any way be commercia lised by public authorities.16 1.2 New informational works and the Internet 1.2.1 General The inherent property of the new computer technology to provide information in a digital form has placed a strain on the functioning copyright law and related law in two respects. First, in reaction to the need of the day, i.e. the need for exclusive right protection of the computer programs and chips industry, digitising per se became an issue of concern for the intellectual property community, Focusing primarily on copyright protection for computer programs and sui generis protection for chips, the outcome of that debate is well known and has been extensively documented; it does not have to be repeated here.17 It suffices here to recall that on a worldwide basis the courts first and national and international legislators second, overruled arguments holding that computer programs (and chips) would be better protected by the technology-related regime of patent law. That discussion has got momentum again since the US recently introduced patent law protection for business formats and the like. The question is also much debated nowadays in the EU. 18 Secondly, the digitising of traditional works such as texts, images and music and making them available through new physical carriers such as CD Roms or through transmission over the Internet raises various questions with regard to the appropriateness of applying the existing legal i.e. copyright regime to them. Concepts and principles such as the originality criterion, fair use or the exhaustion rule have to be reconsidered. They are the subject of a great deal of debate with regard to database protection and music distribution on-line.19 With reference to the actual importance 15. This proposal can be consulted on the website indicated in footnote 13. The proposal and the draft legislation are much critisized by interesting parties such as Stichting Autersrechtbelangen (Commentaar November 2001) and het Nederlands Uitgevers Verbond (Copyright Notice 2001/4, pp. 17-27). 16. J.J.C. Kabel, Communicatie & Commercie (Kluwer Deventer 1997); F.W. Grosheide, Toegang tot informatie, referred to in footnote 12. 17. The debate is well described from a Dutch perspective in Quaedvlieg, referred to in footnote 12. 18. See e.g. H.W.A.M. Hanneman, Over de octrooibaarheid van methoden voor de bedrijfsvoering, BIE 2000/2, pp. 40-45. 19. Placed in an international context and with appropriate source references the relevant issues are discussed from a Dutch perspective in among others F.W. Grosheide, Mass-market Exploitation of