Part I - AI & Dutch Law: How does AI and copyright law work in the Netherlands?

The popularity of online publicly accessible generative AI tools such as ChatGPT published by OpenAI, but also the increase in the integration of AI assistants as functionality within existing online services, raises the question of how this technological development relates to the current position of this technology within Dutch intellectual property law, in particular copyright law.

In this article, the rise of AI is mainly discussed from a Dutch property law perspective. In addition to the Dutch property law perspective on AI, there is currently a lot of attention for the regulation of AI technology from the perspective of safeguarding human rights and freedoms, consumer protection and product safety.
The article you are now reading is Part I in a triptych about the role of AI within the current state of Dutch law. Part II is about the proposal for a European AI regulation and Part III is about the legal points of interest which require attention when formulating policy on the use of AI within your organization or company.

1.    What is intellectual property law?

This article highlights Dutch intellectual property law aspects of AI, in particular Dutch copyright law. Dutch copyright law is one of the areas of law that falls under the proverbial 'umbrella' of Dutch intellectual property law. Intellectual property law is an umbrella term for rights that grant protection to ideas, concepts or inventions. There are many different areas of law within Dutch intellectual property law, such as patent law, breeder's rights, protection of regional products, design law, trademark law, trade name law, database law and chip law.

The umbrella of  Dutch intellectual property law also falls under the larger umbrella of Dutch information law, which also includes media & communications law, privacy & data protection law and the non-physical parts of IT law.

The prevailing legal view is that information is in principle “free” and no one can possess information in a legal sense, so one cannot be the 'owner' of information. The exception is the rights that may be granted by law with regard to certain information. One may have a right with regard to certain information. Contractual conditions regarding access to and use of information are not considered for this article.

There is a sharp legal distinction between the physical carrier of information (also known as “ corpus mechanicum ”) and the incorporeal mental information on that carrier (also known as “ corpus mysticum ” ), which seems complicated but does not have to be. For example, imagine writing a poem on a piece of paper that is mine, the piece of paper is a corpus mechanicum which can be someone's property, the poem itself is a corpus mysticum, a product of the mind of the author to whom the copyright belongs. Your poem is not my property, it makes no difference that the paper is mine, nor do I own the copyright to that product of your mind.

You can then paint the same poem on a wall, another physical carrier. You can have it printed on a postcard, another carrier. You can keep a copy on your laptop, another carrier. Insert a USB stick into that laptop and copy the file containing the poem, another carrier. Your poem remains your poem and you remain the copyright holder, even five data carriers away. Information is therefore separate from the physical object of the data carrier, also from a legal perspective.

2.    What is the legal significance of the intellectual property law aspects of AI?

Dutch intellectual property law is also very relevant within Dutch property law. Outside of Dutch criminal law, Dutch property law is perhaps the most important legal area for everyone in the Netherlands, and in any case one of the legal areas with the most impact on all of us. Dutch property law is the part of the law that regulates the rights and obligations that can form part of the assets of a (legal or natural) person. Dutch property law, for example, concerns the acquisition and loss of property, buying and selling, lending, inheritance, damage compensation and much more.

The core of property law in the Netherlands is laid down in Book 3 and beyond of the Dutch Civil Code (“BW”). The Dutch Civil Code is composed of the following Books:

• Book 1: Natural persons and family law
• Book 2: Legal persons
• Book 3: Property law in general
• Book 4: Inheritance law
• Book 5: in rem rights
• Book 6: General part of the law of obligations
• Book 7: Special agreements
• Book 7A: Special agreements; follow-up
• Book 8: Means of transport and transportation
• [ Book 9: Rights to products of the mind ], this Book has not yet been introduced
• Book 10: Private International Law

Pursuant to Article 3:1 of the Dutch Civil Code, goods are 'all res and property rights'. This legal definition is important, partly because as a result of the so-called 'layered structure' of the Dutch Civil Code, the same definition continues to be used in all subsequent articles of law of the Dutch Civil Code in all subsequent Books. It is therefore essential for the application of those legal articles, whether it concerns acquiring, losing, transferring or protecting assets, to fall within those legal definitions.

Pursuant to Article 3:2 of the Dutch Civil Code, 'res' are material objects subject to human control. Under the “umbrella” of Dutch information law, the main point shared between those areas of law is that information, whether the information is an idea, concept, invention, personal data, data point, news article, story, image, or line of computer code, is intangible. In this context one is in all these instances looking at “immaterial” things. In Dutch property law, one is therefore forced to deal with information in a different way.

Pursuant to Article 3:6 of the Dutch Civil Code, 'property rights' are rights that are transferable, either individually or together with another right, or are intended to provide the holder with material benefits, or are acquired in exchange for material benefits provided or promised. We therefore read no materiality requirement in Article 3:6 of the Dutch Civil Code. Anyone who wants to apply Dutch property law and acquire or transfer an intangible asset as an asset will first have to take this detour, in the absence of an alternative.

A concrete practical example of taking the detour is “selling software”, which does not exist within the current legal system. Software is not a good, it is not a res nor is it a property right, so it essentially does not exist under Dutch property law. Software cannot be sold in the same way that tables or chairs can be sold. You cannot enter into a purchase agreement in which you sell something that is not an asset, you cannot own information or trade it. Yet software suppliers do exist, how is that possible? The solution that has been found in almost all countries in the world is copyright. A copyright, as well as a right of use derived from it in the form of a license granted by a copyright holder in return for payment, is a property right within the meaning of Article 3:6 of the Dutch Civil Code, which is an asset and can be traded. This way, the software supplier can still participate in economic activity.

3.    Can AI-generated images or texts be protected by Dutch copyright law?

The impact and position of generative AI technology within our copyright law can be illustrated, for example, by the legal question of whether images or texts generated by AI can be protected by Dutch copyright law.

3.1.    Copyright

In the Netherlands, the Dutch Copyright Act (“ Aw ”) is the most important source of copyright law. Article 1 of the Dutch Copyright Act tells us what copyright is. Article 1 of the Dutch Copyright Act states: “ Copyright is the exclusive right of the creator of a literary, scientific or artistic work, or of his successors in title, to make it public and to reproduce it, subject to the limitations set by law. ”

In this context, it is relevant to realize that although most countries in the world have copyright law, for example in the Anglo-American context they call it “copyright”, each country has its own copyright laws and regulations, which may also differ. Within the European context, a strong degree of copyright harmonization has taken place over time, but not complete maximum harmonization. For example, the fact that ChatGPT online is offered worldwide by an American company does not preclude the potential applicability of the law of other countries depending on the circumstances.

The Dutch Copyright Act dates back to 1912. However, it is incorrect to suggest that the Dutch Copyright Act has not kept up with new developments in the state of technology since then. In response to various European directives and international treaties, additions have been made to the Dutch Copyright Act. For example, since 1994, Chapter VI “special provisions regarding computer programs” has been added to the Dutch Copyright Act in Articles 45h to 45n Aw , which lays down the most important rules regarding copyright on computer programs. In Chapter VI, the EEC Directive 91/250/EEC (“Software Directive”), which has now been completely replaced by Directive 2009/24/EC (“Software Directive”) was implemented.

Even in the early 20th century , however , legal studies, philosophical literature and science fiction considered the theoretical question of whether robots can produce creative works in the same way as from a human mind. The recent change is therefore mainly that (generative) AI has now become a factor in society and has left the theoretical domain. The time has come to apply the law to an actual development.

3.2.    The legal criteria for granting copyright

Certain criteria follow from the law, literature and established case law on the basis of which the existence of copyright within the meaning of Article 1 of the Dutch Copyright Act is assessed.

3.2.1.    The criteria

In the standard case HR 16 June 2006, ECLI:NL:HR:2006:AU8940 ( Lancôme / Kecofa ), the Supreme Court of the Netherlands formulated a summary of the criteria for the existence of a copyright that has developed over time in national and European case law, it follows that a product of the (human?) mind is eligible for copyright protection if it:

1. is susceptible to human observation;
2. has its own original character;
3. Bears the personal stamp of the maker;
4. The maker's own original character and personal stamp does not only concern what is necessary to obtain a technical effect.
   Below we run through those criteria for an AI-generated work.

3.2.2.    Work of literature, science or art.

In order for a copyright to arise within the meaning of Article 1 of the Dutch Copyright Act, there must first be an observable 'work' of literature, science or art. Article 10 paragraph 1 Aw contains a summary:
“ 1 This law defines literary, scientific or artistic works as follows:
1°. books, brochures, newspapers, magazines and other writings;
2°. theater works and dramatic-musical works;
3°. oral presentations;
4°. choreographic works and pantomimes;
5°. musical works with or without words;
6°. drawing , painting, construction and sculpture, lithographs, engraving
and other sheet metal works;
7°. geographical maps;
8°. designs, sketches and plastic works relating to architecture, geography, location description or other sciences;
9°. photographic works;
10. film works;
11°. works of applied art and industrial drawings and models;
12°. computer programs and preparatory materials;
and in general any work in the field of literature, science or art, in whatever manner or form it may be expressed.'

In the Lancôme / Kecofa case cited earlier, the Supreme Court of the Netherlands ruled that a perfume scent can be protected by copyright. The concept of 'work' is therefore very broad. Partly in view of that history, it is unlikely that images, texts or sounds generated by or with AI cannot be “works” within the meaning of the Dutch Copyright Act. The first criterion will most likely not cause a problem.

3.2.3.    Own original character

'Own original character' means that the work may not be derived from another work, this also follows from the HR decision 30 May 2008, ECLI:NL:HR:2008:BC2153 (Endstra) . There are usually some exceptions for parodies, which are works that use an existing work by making the original work the object of ridicule for humorous purposes. The parody is generally permitted within applicable limits and may also be a copyrighted work in its own right.

The bottom line is that the work must be a 'creation', something new, it must show a 'certain creativity', it must have 'something original', 'something unique'. As these vague incantatory terms suggest, this produces the most difficult discussions in IP Case law, where each case can have a completely different outcome.
The situation is usually such that the person who disputes the existence of a copyright bears the burden of proof to demonstrate that a work does not have its own original character. Possibly such contestation would be easier for an AI-generated work. After all, does an AI tool create something original that is sufficiently new, or does it shuffle its training data within the boundaries imposed by its programmer without its own original character? It can be argued that the core of the distinction between a computer and a human being is that a computer cannot be original. In any case, opinions can differ on this at a fundamental level.

3.2.4.    Personal stamp of the maker

The term “personal stamp” explained in the previously cited Endstra case means that there must be a 'form' that is the result of creative human work and therefore of creative choices and is therefore a product of the human mind.

In CJEU 1 December 2011, ECLI:EU:C:2011:798 ( Painer ), par. 88-89, the Court of Justice of the EU stated: 'An intellectual creation is the author's own creation when it constitutes the expression of his personality. This is the case when the author, in creating the work, has been able to express his creative abilities by making free and creative choices.'

Does the maker therefore also have to be human? There is no explicit 'humanity requirement' in the text of our Dutch Copyright Act. However, as mentioned, the basis of the Dutch Copyright Act still dates from 1912, when the idea of a non-human creator was a more abstract-theoretical question of a mainly philosophical nature.

An opponent of granting or recognizing copyright on works developed by AI could rely on previous cases in which phrasing such as 'human choice', 'human mind', 'human creativity', or other words with the meaning of 'human' are mentioned or discussed in so many words implicitly or explicitly, such as CJEU 16 July 2009, C-5/08, ECLI:EU:C:2009:465 ( Infopaq I ), or CJEU 1 December 2011, ECLI:EU:C:2011:798 ( Painer ).
However , a proponent of granting or recognizing copyright on works developed by AI can just as easily point to cases from which it follows that the use of computer technology, for example in post-processing of photos by photographers, does not lead to no copyright arising, or on the contrary that this precisely shows the creativity through the choices of the maker when using those resources CJEU 1 December 2011, C-145/10, ECLI:EU:C:2011:798 ( Painer ), par. 91.

Proponents and opponents can also selectively quote from lower case law, where sometimes an original character or personal stamp has been deemed present, other times not, such as the District Court of The Hague 27 December 2007, BIE 2009, 29 (List of house titles door-to-door papers ) in which there was deemed to be no original character and personal stamp.

For both positions, there are points of support for or against, for example in literature or existing case law. However, neither the 'for' nor the 'against' camp can escape the fact that the highest courts, national, European and international, have simply not yet ruled on the legal question that actually concerns us and the comparisons with judgments in which AI did not play a role inevitably have limitations.
Only very recently has the question begun to come up. The first court cases are occurring sporadically and with contradictory results, from which no far-reaching conclusions can yet be drawn from a legal perspective. Case law both nationally and internationally is only slowly starting to emerge, for example thanks to human artists who have used AI as a tool and want to have the existence of copyright confirmed in court against a publicist who denies the existence of copyright.

4.    What does the interpretation of the legal role of AI mean for you?

Few current topics receive as much attention both within and outside legal practice as generative AI and its impact on our society in the information age. You may have already used this technology. After all, the tools are easy to find online and can be very user-friendly.

There are numerous perspectives from which the emergence of AI can be considered, for example by testing it against the criteria of existing legal frameworks. As well as from the perspective of the impact that this technology could have in a negative sense and the management of those risks from the perspective of protection of rights and freedoms, consumer protection, or product safety. In a sense, a global race is currently underway between legislators within and outside Europe to be the first to establish an authoritative legal framework for the development and use of AI technology. This will be discussed in more detail in Part II of the triptych.

In everyday life, however, it can be argued that the Dutch property law perspective on works generated by AI is important for you and your organization. Especially when the generative AI means more to you than 'a toy' in your situation. For example, it is conceivable that people have made themselves dependent on such technology for whatever reason, while it is unclear whether anyone could derive any legal rights with regard to the fruits of that technology. After all, compare the detour that the software supplier has to make before he can even 'sell' anything in a way that has some degree of significance or enforceability of legal consequences in our legal system.

The lack of legal certainty and predictability in an era in which standards have barely been able to develop is in any case an uncertainty factor that must at least be consciously taken into account for anyone who will have to deal with generative AI.

5.    Conclusion

The intellectual property implications of AI are very complex to place in an existing legal framework. Many answers to the questions about the role of AI within IP and in a broader sense within our Dutch property law simply do not exist yet. Questions such as whether images or texts 'created' by AI are subject to the same legal protection as expressions of human creativity are certainly not easy to answer. The provisional conclusion should perhaps be that the answer cannot yet exist, because the development is too recent to be able to speak of sufficient legal development to distil a prevailing legal view.

If the first lawsuits about AI follow the trend of previous IP case law on the question of whether or not certain works are copyrightable, there is also a chance that a very casuistic case law will arise in which the answer is slightly different each time based on the circumstances. In any case, the latter would not greatly benefit legal certainty for everyone who has to deal with generative AI.

At the same time, there are indeed grounds to be found in literature and existing case law to argue for or against a certain interpretation of the legal position of non-(entirely) human creations under the Dutch Copyright Act. It cannot be ruled out that the world's rapidly developing regulation of AI will further clarify this topic.

In short, at this point at the cradle of a new technological development it is difficult to make predictions, but we cannot avoid dealing with it.

Are you looking for legal advice about what the rise of AI means for you or your organization? Would you like to know more about the legal aspects of AI? Contact our IT lawyers today.

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