Kluwer IP Law

IP Professor Bernt Hugenholtz Reflects on Authorship in the Digital Era

July 9, 2019

IP professor Bernt Hugenholtz has been researching the effects of ‘networking’ before the internet existed. He warns on the competition advantage Google may have as a result of the DSM-directive and other challenges for IP law in the digital era.

Bernt Hugenholtz was exploring the copyright problems of digital networks in the early 1980’s, before the internet properly existed. He was one of the first to consider the implications of ‘networking’ on the rights of reproduction and communication to the public. He didn’t even have access to a computer at the time; his research was inspired by Wolters Kluwer’s first legal database.

‘I was always into media’, he recounts from his office at the Institute for Information Law (IViR, founded in 1989), one of the largest research institutes at the Faculty of Law of the University of Amsterdam. Originally he wanted to become a journalist. However, during a discouraging job orientation day in secondary school, the editor in chief of the local newspaper in Groningen urged the teens to just go do something useful with their lives, and study law instead. ‘And so I did.’

He never looked back. Soon enough he discovered IP law had a lot to do with media. When considering a topic for his thesis, his supervisor invited him to come and talk about a novelty: ‘Wolters Kluwer had just introduced a computer-based database that connected to users over telephone lines using a little box,’ he told me. ‘He was very proud to be one of the first subscribers. There must be some legal implications, he said.’ And so Hugenholtz studied the copyright consequences of digital networks, long before the internet connected the world.

‘In those days, there were only a few people doing research working in the field of copyright, so I travelled to the University of Amsterdam quite a bit where they had a small library. I had never even seen a real computer before I finished my thesis. In the end I was allowed to visit “the” computer of the University of Groningen – a large mainframe machine still working with punch cards. I asked the operator to do a database search on “copyright and information retrieval” (the title of my thesis), and the computer responded with ‘no results found’, which I used for the cover page of my thesis.’

Advisor to the Dutch State

After refusing military service, he became a legal advisor to the Ministry of Culture in the media department, which propelled his career into international hemispheres. Soon enough, he sat at international conferences with a ‘Pays Bas’ sign in front of him to discuss international intellectual property law on behalf of The Netherlands. ‘That sure felt cool.’

He owed his next job, as a PhD researcher at the University of Amsterdam, to his master’s thesis, which won him the ‘Kluwer Post Scriptum’ prize as the best legal master thesis of the year 1981. In his thesis an early stage Hugenholtz recommended not to overstretch the scope of reproduction rights (‘which was eventually ignored’) and argued that the broad Dutch concept of communication to the public (openbaarmaking) was fit for the networked environment. Time proved him right. The Dutch concept later became the blueprint for European rules on copyright in the digital era, although the word ‘internet’ isn’t mentioned in it once.

Professor in Norway

He offers coffee and insists on getting it himself, even if his shoulder was broken on a trip in Norway a few days before. He leads the way through the central hallway of the Faculty of Law, decorated by an impressive mural by Barbara Broekman. Dropping down five floors, the work of art titled ‘Recht en Onrecht’ (Justice and Injustice), copy pastes well known images from old masters, from Frida Kahlo to Botticelli, depicting justice throughout the years.

Hugenholtz is Professor of copyright law at the University of Amsterdam, and part-time professor at the University of Bergen (Norway). The focus of his research remains digital technology, which is not surprising since ‘practically all developments in my field relate to technology,’ says Hugenholtz. He can think of only one recent exception, a case decided by the European Court of Justice regarding the taste of cheese, or better said the question if copyright exists in the taste of a food product.

The case drew a lot of attention in European copyright circles, and was extensively covered on Wolters Kluwer Copyright Blog. Hugenholtz, who is also a deputy judge at the Court of Arnhem, was the referring judge. The answer of the European Court was ‘no’ says Hugenholtz, ‘as taste cannot be described with sufficient accuracy to guarantee an objective application of copyright law.’ However, other than that, everything exciting is happening in IT and internet-related matters and the legal field is no exception.

New DSM Directive

Today, the main catalyst for European discussions regarding copyright law is the European Digital Single Market Directive that was adopted on May 17. The directive tries to modernize copyright rules regarding a number of current issues, but it is criticized in the half-hearted way it does so, explains Hugenholtz. ‘In the old days, it used to be fairly easy to enforce exclusive rights in respect of films, music and software, for example.

However since the internet emerged, copyright is in a permanent state of crisis. Every internet user is a potential copyright infringer. That leads to an enormous enforcement gap, which is the subject of many court proceedings. Can a copyright owner, for example the producer of a film, force an internet provider to block websites like the Pirate Bay? This requires careful consideration of the interests at stake. Intellectual property rights have fundamental rights’ status in Europe, but so too does freedom of speech. Copyright cases require a constant and careful balancing of conflicting fundamental rights.’

YouTube’s ahead of the crowd

One of the aims of the DSM Directive was to create certainty regarding the liability of content sharing platforms for copyright infringement. YouTube (a Google service) had always argued to be a neutral channel, a hosting provider, thus avoiding liability for the content illegally uploaded to its channels. Copyright owners, in particular the music industry, argued against this by pointing out that YouTube generates half of the world’s music streams, but only pays about 7 per cent of all royalties paid by streaming services.

The DSM Directive was meant to overcome this ‘value gap’ by making content sharing platforms directly liable for copyright infringement. However, the Directive now also provides a carve-out for platforms that make ‘best efforts’ to avoid infringement, by applying filtering software. Of course, this is not only difficult to monitor (the question arises what are ‘best efforts’), it also leads to a competition advantage for Google as YouTube has already been applying filtering technology for many years, explains Hugenholtz. ‘Other content sharing platforms, such as Soundcloud and Instagram, haven’t. Their software will be less advanced and probably will make their platforms less user-friendly.’ What worries him most, however, is that mandatory filtering will lead to private censorship of open platforms.

Instead, Hugenholtz would prefer a remuneration system rather than strict enforcement of copyright. ‘Collective of authors could collect royalties from the platforms and redistribute these among the righholders, much like performing rights societies like SACEM, GEMA and BUMA already do today. They could ask YouTube for data or use content recognition tools like Shazam to develop a distribution model. Applying filtering software will only lead to complications.

If I were to upload an education video with images of a soccer match, for example, it can be taken down even if copyright law allows me to use these images. The same might happen if I were to upload a Trump parody using images from television. Robots, software filters, do not understand the nuances of copyright law , nor do they have a sense of humour.’

Machine learning (data and text mining)

Another controversy arises with respect to the new and stricter rules regarding text and data mining laid down in the DSM Directive, explains Hugenholtz. ‘On the Internet there is a vast pool of data readily available (so-called big data). Mining these data often implicates IP rights. The European Directive introduces one exemption allowing text mining by non-profit research institutions, such as universities, says Hugenholtz. Another exception allows mining for other, commercial purposes, but copyright owners can opt out of this provision. ‘So where does this leave journalists involved in ‘data journalism’, or AI developers relying on data to train their software. And what about search engines such as Google that constantly mine the internet?’

Two years ago ‘big data’ was the buzzword; artificial intelligence (AI) is the trending theme of today. The application of AI leads to challenging questions of intellectual property. Can an invention be patented if the research was purely done by way of computer simulation? Similar questions arise with respect to music or other works generated by algorithms. Who is the rightful owner of the copyright in such cases: the software engineer writing the algorithm or the musician operating the computer?

‘Does Microsoft, the developer of the Word text processing software, have copyright over the articles you write?’, asks Hugenholtz. ‘No. The end result should be attributable to a human being expressing creative choices,’ he explains. ‘A software developer will only have copyright in the end result if he can reasonably foresee what the outcome will be when writing the software. In most cases the musician operating the computer will make the creative choices, when selecting the music.’ But what if a robot directs the whole process? ‘Rights cannot be attributed to robots as the law only governs humans,’ says Hugenholtz firmly. ‘If we ever were to change that I suggest we start with giving rights to animals first.’

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