Soorten rechten/en

Different types of rights may apply to your archive or collection. When you want to make items publicly accessible, it is important that these rights are cleared. In this article, you’ll learn:

• What are copyrights?
• What are portrait rights?
• What are related rights?
• What are database rights?

This tool provides an overview of the various rights that your archive and/or collections can be subject to. You can find more detailed information in the Clearing Rights handbook.

Copyright

What?

The copyright belongs to the person who creates an original ‘work of literature, science or art’. Books and written works, music, art, buildings, sculptures, architectural sketches and designs, geographical maps, photographs, films, computer programmes and databases, among other things, can all be protected by copyright.

The author receives extensive rights as a result. For example, only the author is allowed to reproduce the work and make it accessible to the public. Prior permission is therefore always required from the author when someone wants to use their work.

Copyright does not cover any ideas, theories, styles, methods or concepts until they have been put into practice. The threshold for deeming a piece of work to be original is generally quite low: most works of art and writing are deemed to be original.

For photographs of objects (e.g. works of art), a distinction is made between photos of two-dimensional and three-dimensional objects.

Works that do not include any personal choice from the author in their creation (e.g. an invoice, administrative form, account statement, trivial drawing or photo, etc.) will not be deemed original.

Copyrights include both moral and property rights:

The author’s moral rights include:

• The right to attribution: the author can choose if and how to state their name on their work;
• The right to make their work available to the public for the first time: only the author can decide if they deem a piece of work to be ready for publication and want to share it with or show it to an audience;
• The right to integrity: this enables the author to oppose any distortion or adaptation of their work, whether material or in terms of content, which could harm their honour or reputation.

The author’s property rights or economic rights include:

• The right to reproduction:
  • the right to reproduction in a strict sense;
  • the right to adapt or edit;
  • The right to translate;
  • the resale right for work by visual artists.
• The right to distribution:
  • the right to distribute a work on the market;
  • the right to rent and lend;
• The right to communicate and make available to the public.

Duration

Copyright protection applies from the moment of creation and does not require any additional formalities.

In the European Union, a piece of work is protected from its date of creation until seventy years after the author’s date of death. After their death, the copyrights automatically transfer to the author’s heirs. Seventy years after the death of the author, their work enters the public domain and the copyright protection expires.

Portrait right

What?

The portrait right or the right to portray is separate from the portrait author’s copyright protection and only regulates the use of the portrait.

Every person is granted the right to portray. It is therefore the right of the person concerned to decide whether an image of him or her may be created and used. Permission from the person concerned is therefore always required for both creating an image and its (further) use. Permission to create photos or video images of someone does not necessarily mean that there is also permission to publish or distribute this image. The two are independent of each other and permission must be requested separately.

Exception: this permission is not required when it concerns a photo or images created at a public activity or when exercising a public function.

Just like copyright, the portrait right has two aspects: a moral right and an economic right. The moral aspect is non-transferable to third parties, cannot be time-barred and cannot be waived. The person portrayed can request financial remuneration in exchange for granting permission to create, reproduce, distribute, make public or use their portrait. This economic aspect, unlike the moral aspect, can be transferred.

The moral aspect determines that the person portrayed (or their heirs) can oppose the use of the portrait right for reasons of privacy, or if they believe that they will suffer damage as a result of the image being published or displayed.

An author, owner or potential user of the image cannot reproduce and/or publicly share the portrait without permission from the person portrayed (or their heirs for the first 20 year after their death). Permission can be granted both verbally and in writing. The permission can be explicit but also tacit. Tacit permission must be clear from the circumstances; explicit permission is therefore the rule. In the event of a dispute, the user of the portrait must always be able to prove permission.

Furthermore, the permission is special in principle and not general. This means that the permission relates to specific images and/or specific uses.

Permission must also be interpreted restrictively. This means that permission for one specific use does not automatically imply permission for another use. The user cannot use the portrait for purposes other than those that have been agreed. Moreover, this permission is always revocable by the person portrayed, albeit not arbitrarily.

The portrait right is applicable for ‘all types of images’. The technology used (photo, film, drawing, painting...) is not important. It can be true-to-life images as well as more abstract ones with a characteristic posture or context which allows the person portrayed to be presented in a recognisable way.

Related rights

What?

In addition to the author, other persons who have made a significant contribution to performing, producing or distributing the work also enjoy protection:

• Performing artists (singers, dancers, musicians, theatre/film actors, choir members...)
• Producers of phonograms and the first registrations of films
• Broadcast organisations

These are the people/organisations that are ‘related’ to the author in the sense that they have ‘related rights’: persons who do not create a work of their own, but who make an important contribution to performing, producing and distributing the author’s works.

Duration

Anyone who owns related rights can claim remuneration. The protection provided by related rights applies for 50 years in principle, counting from 1 January in the year following the date of performance or the registration of the audio recording, film recording, etc. Where public release takes place within 50 years, this period is extended by 50 years (for performing artists, film producers and broadcaster organisations alike).

An exception to this rule is made for musical recordings, which benefit from a new period of protection from related rights lasting for 70 years if they are made available to the public within 50 years of their creation. Both the music producers and the performing artists (musicians) hold these related rights.

Database right

What?

The database right regulates the intellectual property for databases. It is part of intellectual property right but falls outside copyright. It is a right sui generis (literally: only one of its kind). In contrast to copyright, which covers a much broader range within the intellectual property right, the database right was created for this specific application. It is based on the Database Directive (96/9/EC) which came into effect with the European Union in 1996.

In short, a database is any collection of things that are systematically or methodically ordered by their creator and are also accessible as such. This means that almost all libraries, documentation centres and archives today work with a database. It is therefore important to know what legal principles are involved with the use of databases, from both the producer’s perspective and the data (re)user’s perspective.

What is protected, exactly? To start with, we need to make the distinction between the database software (if electronic), the database contents, and the way in which the data is presented.

Software

The database right is not applicable for software. Software protection is subject to copyright. In order to keep the reuse of software under control, authors can choose from all kinds of software licences.

Form

The database right doesn’t apply for the form in which data is presented (e.g. in an online accessible database). Copyright also plays a role here. Copyright protection only applies, however, if the structure is the result of a creative activity and is original. For example, it is not permitted to publish a screenshot of a database page in a magazine without permission, unless the licence permits this use. This may be the case if the online database layout is covered by a CC-BY licence. The copyright often provides insufficient protection for databases, however, because many databases do not satisfy the requirement of originality due to their pursuit of a methodical or exhaustive presentation. An important distinction from the copyright is that the database right does not require any creative action. If the form of a database is original (and so a creation), it is therefore protected by copyright, but not by the database right.

Content

Finally, there is also the database content. Separate elements in a database can be copyright protected, e.g. fields with original text descriptions of collection items that employees write based on research. Factual details (e.g. the publication date of a book or the fact that a photo is black and white) that are included in a database do not benefit from copyright protection. All the data that is included and organised can be covered by the database right, but this is not automatically the case. To benefit from protection, the database producer must after all be able to demonstrate a "substantial qualitative or quantitative investment".

Reuse

Before the database right existed, a producer could not prohibit the reuse of (substantial parts of) a database. Certain forms of reuse (e.g. private or in education) also do not require authorisation under current regulations.

Some producers of databases make a conscious decision to increase the openness of their data and encourage reuse. The most recent versions of the Creative Commons licences explicitly include the database right. Anyone who uses a Creative Commons licence 4.0 therefore authorises not only certain forms of reuse of copyright protected content, but also the entire database as a data source in itself. This gives (re-)users more legal certainty than before.

Duration

The database right has a protective term of 15 years from the moment the database construction is complete. This period is renewed each time a substantial investment is made as a result of a change to the database.

Useful links

• Cultuurloket: 'Het beschermen van een creatie' ('Protecting a work')
• Cultuurloket: 'Streaming: wat met auteursrechten?' met praktische gids voor live streaming (MODO LAW, maart 2021) ('Streaming: what about copyright?' with practical guide about live streaming (MODO LAW, March 2021))
• OPENDOEK theatre library copyright advice
• Copyright chapter in ‘Tips for novice artists’ (BAM)
• Copyright principles and topical cases on Partnership for Copyright & Society (SA&S) website
• Book: Copy This Book: an artists’ guide to copyright, by Eric Schrijver
• Clearing Rights handbook

Authors: Bert Lemmens, Bart Magnus and Rony Vissers (meemoo).