Right to Quote
According to Section 15a of the Dutch Copyright Act, it is allowed to quote a copyright-protected work without the consent of the rightholder. In that case an important requirement is that the number and the extent of the parts quoted “are justified by the purpose to be achieved”. What is justified when depends on the circumstances. In some cases, for instance, even an entire work can be reproduced as a quote. This judgment is a fine example of what may be a proportionate quote.
Photographs Used in a TV Broadcast
Photographer W dedicated a series of photographs to children with “Foetal Alcohol Syndrome” (FAS), a syndrome that arises through the use of alcohol during pregnancy. Seven of these photographs were exhibited in the Gelre Ziekenhuis (a hospital). In a news broadcast of 14 October 2011, broadcaster Omroep Gelderland covered the topic of FAS and made recordings for that purpose in the Gelre Ziekenhuis. The total duration of the news item was 3 minutes and 40 seconds. The photographs were shown during 29 seconds (13% of the total duration). Fourteen seconds thereof consisted of an overview picture of five photographs, in which the camera zoomed in on four photographs. In an interview with a doctor two photographs were shown in the background during fifteen seconds, not so clearly visible. The source of the photographs was mentioned in the broadcast.
Photographs Used for a Decorative Purpose?
The Subdistrict Court established that “it must be assessed whether the photographs serve, to a large extent, a purpose of decoration or embellishment of the broadcast, or that they are subordinate to the broadcast, reasonably form a whole with it, and have the effect to give the viewer an impression of the item discussed”. The Subdistrict Court concluded that the showing of the photographs by Omroep Gelderland constituted an allowable quote. The photographs have a clear function in the discussion of the subject matter and were not used any longer than necessary. By showing the photographs in the broadcast, the exploitation interests of the photographer have not been adversely affected.
This judgment is reminiscent of the China Blue case from 2007. In this case, approximately 50% of the broadcast consisted of a quote. In an item of the news program EenVandaag of broadcaster TROS about working conditions in poor countries, ample attention was given to the première of the documentary China Blue about the same subject matter. Nine short fragments from the documentary, of 3 minutes and 12 seconds in total, were used for the item of 6 ½ minutes in total.
The Court of Amsterdam ruled that the TROS had not unnecessarily used the fragments. The mere fact that it might also have been possible to announce the movie by means of two or three fragments, as the claimant argued, did not alter this. According to the Court, the TROS rightfully relied on the right to quote.
No Veiled Exploitation
In conclusion, a quote is not disproportionate per se for the sole reason that it could have been smaller. More relevant is the question as to whether there is veiled exploitation. It will always depend on the circumstances of the case whether this is the case.