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The Netherlands has fully implemented the provisions of the DSM directive on 7 June 2021
Procedure:
The Netherlands have been the first EU member state to fully implement the Directive in December 2020. The Ministry of Justice held an online consultation in June 2019 and the Parliamentary process allowed civil society groups to voice concerns that resulted in marginal improvements of the draft law proposed by the government.
Article 17:
The Dutch implementation of Article 17 restates the text of the Directive. As such it does not contain any ex-ante safeguards for users rights or additional transparency provisions. It also does not narrow down the definition of platforms affected by these rules. The Minister of Justice has the ability to provide further rules for the application of the provision, but there is no indication as to how these would look like yet or if this provision will be used.
Other:
The Dutch implementation does not subject the education exception to license availability. Article 14 was not transposed, since the existing Dutch law does not protect unoriginal reproductions. The scope of the press publisher right is subject to all of the limits foreseen in the DSM Directive.: scientific and academic publications are excluded from the definition of press publications; it is clarified that the right does not apply to private uses and non-commercial uses by individual users, to acts of hyperlinking nor to the use of individual words and very short excerpts of press publications; it is clarified that the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works; and the right is subject to all the exceptions and limitations to copyright laid out in the national law.
Bonus:
Nothing to see here
Given that the Netherlands were one of biggest opponents of Article 15 and 17 when the directive was discussed in Council and ultimately voted against the Directive, it is disappointing that the Ministry of Justice did not explore the possibility to include strong user rights' safeguards into its implementation of Article 17. By merely restating the provisions of the Directive, the Dutch government failed to demonstrate its commitment to protecting user rights when it had the opportunity to do so.
Instead of substance, the Ministry of Justice seems to have been focussed on speed: the Netherlands have been the first out of the door, with a draft implementation text ready for an online consultation less than a month after the publication of the Directive in the official Journal. The online consultation generated a lot of feedback and, in May 2020, the government introduced a draft law into Parliament. This draft law lacked many of the user rights safeguards contained in Article 17, but together with our partners from Bits of Freedom and Open Nederland we managed to get the government to amend its proposal and to add the missing references to user rights safeguards. The amended law was adopted in December of 2020, making the Netherlands the first member state to pass a complete implementation law. The vast majority of the provisions have entered into force on the 7th of June 2021.
Local partners: Our local partners have been Bits of Freedom, Vereniging Open Nederland en Vrijschrijft.org
For more information please see our implementation tracking page for the Netherlands.
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Credits
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