No intention to create a work is required for obtaining copyright. On 30 May 2008, the Supreme Court in The Netherlands decided in a dispute between the sons of the real estate broker Endstra and two journalists that for the creation of a copyright work it is not required that the author intended to make a creation.
In 2003 and 2004, the real estate broker Endstra held fifteen confidential conversations with detectives of the Criminal Intelligence Unit. Endstra told them that Willem Holleeder had illicitly obtained a large amount of money from him. He also accused the Holleeder-organisation of a large number of murders. Without Endstra’s knowledge, these conversations were recorded on tape and the majority of these conversations were typed out later. For safety reasons, these recorded conversations were held in a moving car and are also known as ‘the back seat conversations’ or ‘the Endstra tapes’. Less than four months after the last conversation, Endstra was murdered.
The police started an investigation into his murder and the extortion by the Holleeder-organisation. The transcripts of nine conversations and summaries of the other back seat conversations were added to the criminal file and were obtained by two journalists of the Dutch newspaper, “The Parool”. These journalists published the back seat conversations in a book with the name “The Endstra-Tapes” omitting only fillers such as “um” and “ers” and certain personal information and adding a preface and an epilogue. Unsurprisingly, Endstra´s sons are not happy with this publication and tried to enforce through the court that this book must be withdrawn from the market. Among other things, they asserted that the back seat conversations were conducted in an interview form and that these interviews were to be designated as a work for the purposes of the Copyright Act and therefore acquired copyright. Therefore, permission was required from the Endstra heirs to publish the conversations.
In The Netherlands, a work receives copyright protection if it ‘has its own original character and bears the personal stamp of the author’. In other words, the work must be original. Whether the work is beautiful or ugly, good or bad, requires little effort or years of work, is irrelevant in establishing whether or not the work attracts copyright protection. As long as there is an original expression this will generally be sufficient.
Examples of works that may be the subject of copyright are novels, paintings, software and also television formats, musical improvisations, games and lectures. In 2006, the Dutch Supreme Court determined that also a scent may qualify for copyright protection. It is therefore clear that a large diversity of works in The Netherlands enjoy copyright protection.
Back to the Endstra-tapes. Both the District Court Amsterdam and the Court of Appeal Amsterdam found that these conversations were not protected by copyright. These courts saw the conversations as a businesslike transfer of information. It was assessed that the requirements applicable to qualify for copyright protection in The Netherlands are low, but not so low that there was no threshold at all. Before there is a copyright work it must have been ‘conceived as a coherent creation’ by the author. An author must intentionally want to make an intellectual creation. Although Endstra undoubtedly thought about what he wanted and did not want to release to the detectives and therefore applied a certain selection, he did not intentionally couch his story as a coherent creation and as a result there was no copyright work.
The Court of Appeal said that if someone does not intend to make a copyright work, no copyright work is created. Endstra thought he was only transferring information hoping that on this basis the Criminal Intelligence Unit would catch Holleeder and his colleagues. He was not writing crime fiction and therefore did not deserve copyright protection according to the Court of Appeal.
With the introduction of this ‘intention requirement’, the Court of Appeal seems to add a new requirement to the copyright protection requirements. The Supreme Court disagreed. It is true that there must be human labour and therefore creative choices. However, it is not important whether the author has intentionally wanted to create a work and has intentionally wanted to make creative choices. In other words: it does not matter whether Endstra opted for making a work and intentionally made particular original choices. If in the Endstra-tapes sufficiently creative choices were made, these conversations attract copyright.
Some lawyers have asserted that such a view is incorrect because there must be an ‘intended creation’, it being important whether this creation is destined for publication. Others believe the Supreme Court is right and that unintended creations deserve to attract copyright. Intention, just like when assessing whether something is ‘beautiful’, is irrelevant to answering the question whether something has an original design. In addition an intention requirement is not logical: the creation of a work is for example not the primary approach of this piece of text by me. The primary object of this article is to inform you, not to create a copyright work.
Furthermore, it may in practice be very hard to find out whether a particular form was intentionally chosen. It can in any case not be asked of Mr Endstra anymore.