Judgment On Program Information: Court Rules That It Is Now Up To Politics


In the weekend of 2 June 2012 De Telegraaf had a supplement with the program information for one week. It was announced in the newspaper that this supplement would be included in De Telegraaf throughout the 2012 European Football Championship. On 13 June 2012, the Court in preliminary relief proceedings rendered a judgment in the proceedings initiated in this regard by 'the broadcasters' NPO (representative of the public broadcasters), and the commercial broadcasters SBS and RTL.

For years, the broadcasters have had a monopoly on the program information, based on the so-called copyright protection of non-original writings and on provisions in the Media Act. Already since the 1960's, program information has been the subject of much litigation. To date, it has always been ruled that the broadcasters may successfully invoke the protection of non-original writings (a kind of light copyright) with respect to the copying of program information. Unlike in the case of copyright, protection of non-original writings does not require "originality in the sense that it is its author's own intellectual creation". This protection is also more restricted than protection under copyright law; only direct derivation is not permitted.

Lately, however, this ground for the protection of program information has come under fire. The Dutch Lower House of Parliament has adopted a bill in which the relevant sections in the Media Act are repealed. After the entry into effect of the law amendment the public broadcasters will be obligated to make the information available for a reasonable consideration. In addition, the European Court of Justice rendered a judgment in the Football Dataco case (March 2012) on the basis of which it must be assumed that the protection of non-original writings in respect of databases is in conflict with European law.

Against this background, De Telegraaf took the position that it was free to publish the weekly program information without permission of the broadcasters. The broadcasters did not agree and took the case to court.

Protection 'Full' Copyright First and foremost, the broadcasters invoked the so-called "full" copyright for their program information. De Telegraaf had only copied the starting times and titles of the programs from the information: the program descriptions had been edited by De Telegraaf itself. The Court in preliminary relief proceedings ruled that the program information is only a description of "what has been...

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