COUNCIL OF EUROPE
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EUROPEAN COMMISSION OF HUMAN RIUHTS
^ DECISION OF THE COMM ISSION
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AS TO THE ADMISSIBILITY
of Application No.-' 269Q/65 
by N. V„ Televizier^ 
against the Netherlands
The European ■ Commission of Human-Rights sitting in private on 
r5th December, 1966, under-’the presidency ■ of Mr. C.Th, EQ3TATHIADES, 
and the following mèmbers being present:
MM. A. SUSTERHENN 
M..S0RENSEN 
■■■ 
. 
Eo ERI/IACORA
E. CASTBERG 
■
J. E. S. EAWCETT 
E. WELTER 
T. BALTA
P. P. O'DONOGHUE
P. DELAHAYE 
■ .
IVIr. A. B. McNULTY, Secretary to the Commission
Haying regard to the Application lodged on 17th December, 1965 
by N. V. Televizier against the Netherlands and registered on 
20th December,' 1965 under file No. 2690/65; . 
■
Having regard to the observations on the admissibility 
submitted by the Netherlands Governm-ent- and the Applicant;
Having regard to the report provided for in Rule 45» 
paragraph.!, of the Rules of Procedure of the Commission;
Having deliberated.
06.2/51-.
, 2690/65' . ■ 
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THE 'facts ■ : ' 
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‘
Whereas the facts as presented hy the;,.Applicant may'be.
■ summarised as 'follows:-
. The '-Applicant, a Netherlands- company with its seat at : 
I'Leyden, is'represented by ]VIr, A.G-. Maris, a-lawyer practising
■ in The Hague,- 
' 
■
The Applicant publishes in the Netherlands.a weekly 
‘■'^magazine ,"Televizier", which contains information and comments 
on the■forthcoming radio and television programmes of the ■ 
different Dutch broadcasting corporations Algemene Vereniging ■
■ Radio'. Omroep (AVRO), Katholieke Radio Omroep (KRO), Nederlandse 
'.Chfisteli jke Radio V'erehlging (NCRV), ■ Omroepvereniging VARA
■ and Vrijzinhig Protè.stantse 'Radio Omroep (VPRO).
■ - The,_ Cen.traal Bureau- vppr de Omroep in Nederland is an - 
'organisation which periodically makes 'compilations in.Prench, ' 
of the programmes- of' the'above broadcasting corporations 
■
,these compilations are intended for publication- outside the 
Netherlands.
The broadcasting corporations end the Centraal Bureau ; 
instituted legal proceedings ; against the Applicant, alleging 
■that the la-tter, when publishing information about forth- 
. coming ' radio and television programmes, had made use of'-the 
,)Compilations-’of the' Centraal 'Bureau in violation of the 
' 
.
Dutch Copyright Act (Auteurswet), Reference was made to , 
Article 10 "of this Act which- confers protection even^on works 
in'writing which.'are not of a; .distinetive or personal■nature,
On 22nd January, 196.3, the District Court ( Arrondissements- 
Rechtbank j gave its judgment. In, the ■ case .■ The Court stated that 
.the compilations concerned, although not being of a personal 
■character, were protected, by the Copyright Act, The. Centraal 
Bureau was the author of 'these compilations- and the broadcasting 
corporations also had an interest which was protected by' thé 
Copyright Act,' Before deciding, however, whether or nol there 
^had' been a violation■ of. copyright .in the present case,..the 
,Court invited the broadcasting .'corporations and the Centraal ' 
‘Bureau .to.submit evidence in support of their■allegation that 
■the compilations had been reproduced by the Applicant' company.
2690/65
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The Applicant appealed to the Court of Appeal (Gerechtshof) 
of The Hague which, on 26th March, 1964, dismissed the claims 
of the hroadcasting corporations and 'the Centraal Bureau as being 
inadmissible on the grounds that the Centraal Bureau had no - 
interest which was protected by the Copyright Act since it did 
not publish its compilations in the Netherlands and that the 
broadcasting corporations did not have any copyright to compila­
tions produced by the Centraal Bureau»
A further appeal (beroep in cassatie) was lodged by the 
broadcasting corporations and the Centraal Bureau and, subsidiarily, 
by the Applicant, In its decision of 25th June, 1965, the 
Supreme Court- (Hoge Raad) held that, under the Copyright Act, 
the Centraal Bureau (but not the boradcasting corporations-) 
ov^ned a copyright in the compilations concerned although these 
were not of a personal character.' The copyright to a text lacking 
a personal character could, in the opinion of the Supreme Court, 
be violated not only by a literal reproduction of the text 'but 
also by a'translation of that text (even if such translation 
was not literal) or by a reproduction of the text in a revised 
form, provided that the - modifications' made in the text were not 
too far-reaching» The q_uestion 'whether or not the Applicant 
had violated the copyright of the Centraal Bureau could only 
be answered after an examination of the evidence in the case and 
the Centraal Bureau was, therefore, permitted to introduce such 
evidence to prove its allegations-»
In their decisions, the Court of Appeal and the Supreme 
Court also examined the qu'estion whether it v/ould be- a violation 
o'f the Convention on Himan Rights'to forbid t'he Applicant to 
publish information about the radio and television programmes 
concerned; this had been alleged by the Applicant w^ho invoked 
before the Supreme Court Articles 1, 2, 9, 10, 13, 14 and l8 of 
the Convention., The Court of Appeal stated in this respect t-hat 
the freedom of expression,, including the freedom to hold opinions 
and to receive and impart information' and ideas (Article 10 of 
the Convention), did not imply a freedom to act unlawfully or to 
violate the provisions of the Copyright *Act. The Supreme Court 
stated that, in the present case, there v/as no contradiction 
betv/een the Copyright Act and Article 10. of the Convention 
as complete 'weekly radio programmes were not information which 
everyone has the right to receive or impart within the meaning 
of Article 10.
26.90/65
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The Applicant now submits that., according'to the -decision 
of the Supreme Court, the. compilations made.-by' the Centraal 
Bureau are protected by the- But'ch^-.Go'pyright ■ A'ct despite 'thé ■ 
fact that theyare-not a literary, scientific'of.artistic work, 
that they have no distinctive or' personal character■'ând^ that ■ 
they are ' not''protected by the Berne Convention oh the-'protection 
'of. literary and artistic works or- by the -copyright' ac-ts of-'the 
countries in which the- compilations' co-ncerned-. are published.
The Applicant observes that, in the opinion of the Supreme 'Court, 
such protection also- extends to- translations ' into' IXitch of a, 
french original text even though these translations are no'b ‘ 
literal and;Some parts of'the text âre^omitted and new parts 
added,as Is -the case.v^ith the publication of radio and television 
programmes' I'n''the Applicant's magazi-ne. 
‘ 
" 
'C'
The Applicant further states that the conseq.uence in the, 
present cas'e is that the broadcasting corporations, which als.a 
publish weekly magazines or have a financial interest in such 
magazines, have an'unjustifiable monopoly of the news services 
in the Netherlands regarding forthcoming radio and television 
programmes. This amounts, in' thé Applicant's opinion, to a 
violation of Articles 10 and 1'4 of the Convention, The Applicant 
company alleges itself to be a victim of this violation of the 
Convention irrespective of the question whether the _ Centraa.1 
Bureau succeeds, in proving that the Applicant company.has 
already systematically reproduce,! the\compilations of the 
Centraal .Bureau; the Applicant company points out that, in any 
case, it is in its interest to be able, to publish lav/fully 
information based on the compilations, of the Centraal Bureau.
1
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2690/65
SUBISSIONS. OP .THE PARTIES
y/hereas the submissions of the Parties have been summarised 
beloW; .whereas in this summary the Commission has considered 
it desirable't.o adhere, as. far as possible, to the exact terms 
of the .Parties' submissions; ■ " 
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1. Is the Applicant a victim within the meaning, of Article 25 
of the Convention?.- 
....
G-oyernment submitted that the decision of the ;Supreme 
Court, did, hot make the Applicant company a "victim" within .the 
meaning of.Article 25 of the,Convention, . The Applicant, company' 
could' only claim to- be a victim, if, and v/hen, .it'was ordered- 
by a final decision of the.courts to desist from publication.
In the present case, there was still a possibility that the 
courts , in the subsequent proceedings would decide., that the 
pu-blications by Televizier did not infringe the copyright-of 
the Centraal Bureau,- 
‘ 
:
;.The Government added; that it realised' that the decision 
of the-Supreme Court, made i-t impossible ; for the-.Applicant to ■ 
publish any reproduction of the compilations, by way of either 
a literal reproduction ■ or a'-translation, or a'reproduction' 
in a revised form where the modifications■ made in. the text' 
were not too.far-reaching, Althoughi the Applicant company 
had..stated that it wished'to reproduce the texts in.this form, 
this co.uld not .make the Applicant'a victim under the Convention, 
In the Government's opinion, the situation was such that, 
if the law prohibited some act - in this case, the ■ reproduction of 
a text-in which someone else has a copyright - a court decision 
simply stating, this legal rule did not add anything to the ■' ' 
legal prohibition if it did not contain- an- ord.er to desist 
■ from, certain specific acts. In other v/ords', the , Applicant 
■did not complain about a decision of the Court prohibiting 
the exercise of.a right protected by the Convention but'about 
a legal'rule which might, according, to the■ Applicant-,-'in-.--- 
certain, cases"conflict with the Convention. The Application 
of -Teleyizier showed this plainly. The Government did not deny 
that, -'in principle., it was possible to submit a complaint to 
the -Commission ab.out a provision of national lav^r but it submitted 
that this only -applied, in the case of a specific, action based 
on that law having-been taken against the Applicant.. Such 
was not the case or at least was not yet the case.
2690/65
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The Applicant company did not accept this opinion stated 
hy the Government, It agreed that^it was correct that the 
'Supreme Court had not ordered the Applicant to desist from 
any action, 'The Supreme Court had referred the case hack 
to thé-District Coiirt for a'decision, after submission of- 
evidence, on the (Question whether the Applicant had Used the 
compilations for its publication of the programmes,
-However, the.Suprenie Court had given a final 'decision, 
at the highest instance^and not subject to any national, legal 
remedy, in the legal proc.eedings, between the Centraai''Bufeau 
and the broadcasting corporations, on the one side, and the. 
Applicant on the other side, . The Court had held.that the 
use by the Applicant of the' c;ompilations‘ -yf' the Centraal . 
Bureau for the' publication of programmes would, according 
to the Copyright Act and notwithstanding Article 10 of the 
Convention, be a violation of the copyright of the Centraal 
Bureau. Conseq^uently, the Applicant was a victim of a. viola­
tion by the Government of the rights set forth in the Convention
In this Applicant’s opinion, this, situation was confirmed 
by the fact that the Government had itself'admitfed that the 
decision of the Supreme Court made it impossible for the 
Applicant to publish a reproduction of the' .texts of the compi­
lations of the Centraal Bureau.
It was not correct that the Applicant complained not about 
a decision of the Court prohibiting the exercise of a right 
protected by the Convention but about a legal rule. The 
Applicant complained about the decision of the Supreme Court 
insofar as it confirmed the decisions of the District Court 
and the. Court of Appeal and insofar as it confirmed the copy­
right held by the Centraal Bureau on the compilations, by 
v^hich the Applicant was refused the exercise- of the rights set 
foi’th in Article 10 of the Convention^ This was a case of 
a specific action taken against the Applicant and based on 
a provision of national .lav/.
The Applicant stated that it was apparently the point of 
view of the Government that the Application was admissible 
only.after the judge, who was determining the issues of facts, 
had decided the q_uestion whether the Applicant company had 
used the compilations for its publication of programmes.
2690/65 ■
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Howe,ver,, the decision to he taken, hy the 'judge on that 
q.uestion had nothing to do with the q,uestions, decided hy the 
Suprteme Court, namely the nature and extent of the copyright 
belonging to the Centraal Bureau according to the Copyright.- 
Act and secondly, the effect thereon of the provisions of the 
Convention. The question whether the Applicant company had 
used the compilations for its publication of programmes was, 
only relevant to the further question- whether ; there was any 
■.reason to- order the. Applicant, under the -threat of a penalty,
■to-desist from using the compilations for its publication-of 
.programmes. If Televizier had used the compilations.in the 
past, this'would provide a ground for a court order backed 
by the possibility of a penalty, not-to do so again. This 
had nothing to do with the question whether the Copyright Act- 
forbids the Applicant to use the compilations for its publica­
tion of the programmes. This question had been decided, 
at highest instance and v/ithout any further domestic legal ' 
remedies, in the decision.of the Supreme Court of 25th June, 
1965. The question still to be'decided by the District Court 
and the evidence required from the Centraal Bureau did not 
relate 'to the legal question whether use of the compilations 
violates the Copyright Act, but only to the question whether' 
there is a reason, on the ground of previous acts of the -Appli­
cant, to enforce the prohibition by threat of a penalty,.
The judge of the lower court, who would have to decide 
this, question, v/ould .moreover have to follo.v^? the decision -of 
the ..Supreme. .Court (Article 424.of. .the Netherlands Code of 
Civil Procedure)'whose decision he would.be unable to change 
in any respect. 
' 
. .
furthermore, it-might "take some time before there-was a 
final decision at^highest instance, on the question at present 
before the District Court. The decision of the Supreme Court 
was dated 25th June, 1965. The hearing of witnesses on the 
remaining question had been held. The next'step in the pro-' 
ceedings would probably be-the presentation of written pleadings 
to be followed by oral pleadings'. Only after'that would the 
decision of the District Courtbe rendered and this decision 
would be subject to appeal,'"while the decision of the Court of 
Appeal was subjèct to further appeal, It should be taken into 
account that the final coùrt decision at highest .instance' 
on the said question of facts would be given some years-aftér' 
the decision of the Supreme C'ourt of 25th June, 1965. Conse- 
quently,'an order of the Court to desist from a certain specific 
act would- only'then be given, if indeed it was given.at all.
H
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2690/65 
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Considering thes-e circumstances it would,, in the 
Applicant'-s opinion, ■ be contrary,...to the text and the purpose^
'.of the Convention not to . consider the Applicant,under- the ■ 
present' circumstances ,, a victiti within the meaning of the 
Convention,, If the Applicant' company had delayed- its complaint 
regarding the contents of the decision of the Supreme Court'
■of 25th June-, 1965 until-the jp.dge at highest. ins tanee'^ had', at a 
much .later, datedecided the' said Question of fact-and until ah o.rdeh 
'to'desist from.'sue.h p.ublicati ons. as had 'been, made .by. the.. Applicant 
i had been'-given -(if ; ever), ,tbeh:'fhe Application-would-have'been 
declared inadmissible bécause of failure to' observe the time- 
*
limit--of six'months mentioned in. Article 26; of. the Convention.
:f I'h. général it , should be e.onsidered. .ofgr'ë'àt importance 
. that’measures to ènd: violations hy High Contracting Parties 
of 'the 'rights mentioned .'.in the Convention, ':were taken as soon - 
'as ;possible,' ' 
'
. This, applied' al.so to the .present case because the,Nether­
lands broadcasting corporations^ v/hich founded the Centraal 
Bureau tried to acquire a monopoly for the publication o.f 
broadcasting programmes and to>^,make it impossible for the 
■Applicant to-publish these programmes.This was contrary to 
t-he rights mentioned- in Articles 10 and 14 of the Convention.
■ 
Does the.Application-concern the right to freedom'of
: expression as,- gilar~anteed' by Article 10, 'paragraph (T), 
of the Convention? 
■ i
The ' G-oyernment submitted- that the Application was inadmissible . 
as -it did not concern the .right gaaranteed,by Article 10, para-' _ 
graph '(l) , o’f the, Convention.- In this regard the Government 
stated that the Applicant company-, claimed the -freedom ,to publish 
in the magazine Tclevizier ' reprod'ur tions of the texts of compi­
lations . in Prench of the programmes- of -the Batch broadcasting 
organisations; such ' te.xts' were . drafted by . the ' Centraal. Bureau ^ 
*
and -sent-by i.t to about one hundred specific addresse'es Bor -their 
use and for publication by them.■ The Applicant obtained these 
texts against the express ‘wisho-^. qf the Centraal Bureau-and the 
ofganisation or per-3on v-vho forwarded the texts to the -Applicant 
-did so-in violation of an obligation to. the contrary. .■
J.
2690/65
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In other words,the Applicant claimed, according to the Govern' 
mentitha right to p-u>lisb texts which had heen drafted' hy someone- 
else and'whichbeing not yot published', in any form,-had the 
character of private letters to ^ specific niimbef of addressees; 
furthermore, the author did not wish these texts to come into 
■the hands ■ of .the Applicant, The Applicant company had been.. 
careful not to divulge the source frolt which it' obtained' these 
texts but, in the present context, it must be assumed that àt 
least one of the addressees had be^h induced by the Applicant 
company to send it the texts. The Applicant company was a 
private corporation,■ publishing a magazine■for.profit and in 
competition.with the magazines .of the Dutch broadcasting ' 
organisations-. For reasons of commercial competition the 
Applicant wished to publish the full weekly programmes in - 
.;Televizier before, or at any rate at the same time,as, the 
other magazines.
The Government stated that it was convinced -that the 
present case _^v^as in-no way covered-by the Convention. Article 10 
■ stated'that everyone has .the fight to freedomof-' expression' 
and tbls' alone was the right ■ protected ».ndér the Convention,
By. way of implementation, the second sentence of Article 10, 
paragraph (1), stated, .that this 'right shall include freedom 
to hold opinions and to receive and impart information and 
ideas without■interference by public authority and regardless 
of frontiers.' This second sentence had been included in 
Article 10 as, without this additional rule, the right to 
freedom of expression might not be fully realisable.' But 
the- second se-ntence should.not be read out of con'fcext. The 
meaning of Article 10,, paragraph" (lÿ,‘“was'that, if informâtio.n, 
was, offered or ideas v\^ere' expressed,, public■ authority should 
not prevent a person from receiving that information or' taking 
cognisance of those ideas'. The Convention did. not, however, 
confer upon any person a right to obtain, any inforiaation which 
another person might be able to give. The Convention did not 
affect the freedom of any person, having certain information .. 
at his disposal, to make such, information public or, not as. he. 
wished, or. to determinethe time'or mode of publication or . 
to impart that information to some pe’^sohs but not to others,
A rule, obliging a person (whether private or. public) to reveal 
information which he did not v/ish to reveal would evidently 
constitute a grave- violation of the freedom of expression of
2690/65
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that person: 
the freedom of expression included freedom
of non-expression. The Convention was intended to prevent 
public authorities from raisi^ig a barrier between a person 
who wished to impart certain information,or ideas and a 
person who wished to receive that information’ or these ideaé ; 
it did not give a person access to a source of information or 
ideas which the owner wished to reserve to himself or to make 
accessible only to. certain pers.ons of .his choice.
The Government stated that the Applicant was trying to 
read into the Convention the meaning thus rejected. The 
Applicant company complained that a provision of iKitch law 
prevented it from publishing information that the Centraal 
Bureau, being the source of that information, had not intended 
for the Applicant, did not wish to impart to the Applicant 
and did not wish to be published by the Applicant, but wished 
to be published at a time and in a way determ-ined by the 
Centraal Bureau itself, A petition to this effect was 
inadmissible under the Convention because there was no (luestiôn 
of any violation of freedom of expression.
The Convention did not touch on any rule of domestic 
law declaring illegal the obtaining, and publishing, of 
information against the will of the source of that information. 
It was immaterial whether the domestic law construed this rule 
as a violation of copyright or in any other way. Therefore, 
the Commission need not examine whether the Dutch copyright 
law, as interpreted by the Suprem.e Court, might conceivably 
result in some cases in a conflict with the Convention; in 
the case at issue there certainly was no such conflict, for 
the same reason it was also immaterial whether a complete 
weekly radio programme -constituted information within the 
meaning of Article 10 of the Convention or not.
The Dutch public was in no .way denied information about 
radio and television programmes. The programme editions of 
the broadcasting organisations (AVRO, KRO, RCRV, VARA and 
VPRO) were distributed in hundreds of thousands of copies and 
were available to the public at a moderate price. In addition 
an abbreviated programme was issued weekly to the newspapers 
and published therein. Therefore the public could in -fact 
'obtain all the information which they wanted about the forth­
coming programmes,
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2690/65
■ The'"G-overninent was of the opinion that the 'provision 
of Article■lOp'paragraph (l), of the.Convention served, on 
the one hand, the interests of those who wished to express 
their opinion or to impart information and, on thé other hand, 
the interests of the public who wished to; obtain such opinions 
or information»
Article 10, paragraph (l) vms not meant to serve the - 
commercial interests of the editors of newspapers or magazines 
The Government v^^as not concerned (nor v/as the legislator) 
with'tbe q_uestions whether such editors v/ere able to-obtain 
the' information vfcich they w'ished to publish or to v/hat extent 
and at what price they would obtain it, so long^as the public 
could get. the information which they desired.
■■ The present case concerned the commercial interests of 
the Applicant- in competition with other information media and 
nothing but -that. 
■
The Government then dealt with the question as to whether 
the Dutch Copyright Act could in any way be considered to be 
contrary to. the Convention. The Government pointed out that 
the Copyright Act extended copyright protection to books, 
pamphlets, newspapers, magazines and all other w’ritings 
(Article 10 siilà 1^ of the Copyright Act J.
According to the literal meaning of the v/ords, -thé 
history of the Copyright Act and constant rulings of the 
‘Supreme Court^, "all other writing" meant-'writings without' 
any artistic or scientific value including w^ritings such as 
directories,'"'railway time tables catalogues of trade commo­
dities, programmes, etc, ■ Article 15 of the Copyright Act . 
limited the copyright on "all other writings" as followss^
"The copying of articles, reports or other writings, with 
one exception as to novels and short.stories, published in . 
newspapers or magazines by another .newspaper or magazine 
without the consent of the author- or his successor in title 
is not regarded as a violation of the copyright on the iirst- 
mentioned new^spaper or, magazine , provided that .the newspaper 
or magazine from which .the copy has been taken be clearly^ 
named.and provided that the copyright has not been^explicitly 
reserved" . , ,"Regarding articles concerning political 
■points of-view', news bulletins and miiscellaiieous new^s, . 
copyright can not be reserved."
2690/65
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in a series of decisions the Supreme Court had ruled 
that the copyright on writings without a personal.character 
had a limited scope,- The copyright regarding these wri-tings- 
v\^as based- solely on the composition of the writing, therefore 
only he who has actually?' done the writing eoul4 claim copy-' 
right, -On historical grounds the Supreme Court had ruled .■ 
that the tenor of the copyright on these writings was to grant 
exclusively to the writer the benefit of fhe'publication of 
the writings, and had therefore denied other persons the- power- 
to publish and mult-iply the. writings,^ Jn accordance with, 
this purpose it had to be assumed that the law granted a copy- 
■right on writings- without a personal character only if- they 
had been- published or were inte.'nded for publication. In a,, 
decision of 27th January, 1961- (Nederlahdse Jurisprudentie.1962 
No, 355-)' the. Supreme Court had ruled in a. case, also concerning 
the publication of radio- programmes com-piled-by another, that 
"to the author of a piece of writing without'a personal character 
no further protection is granted than against the copying of 
the contents of the piece of writing itself; ^ in particular ' 
no copyright ‘can b_e recognised on- the factual substance contained 
in tbe piece of writing, apart from the piece of writing as such,"
from th\s interpretation of the Copyright Act it appeared:
1*^, that the rule did not raise any barrier: to the obtaining 
of the Inf ormation; incorporated-in the writij(jigs: : the copyright 
was extended only to writings which had been' or would be published 
anyway; 2^, that the rule did not imply a copyright as to 
information; ; the information which could be gleaned from, the 
piece of v/riting was free, and thé only thing which v^as prohibited 
was the publication of the piece of writing i.n- the form in which 
the author had 'written it down, or in a form so closely resembling 
the original piece _of writiag that it must he considered as a 
copy. It was in this context that one should understand the • 
■passage in the decision of the Supreme Court' of 25th June, 1965» 
where .the Court stated that a complete weekly radio programme 
v-/as not "information" within the meaning of Article 10 of the 
-Convention.
\
The Applicant was not prevented from publishing information 
about forthcoming radio programmes 'but only from publishing 
information in a-formi closely resembling, and copied from, 
writings by the Centraal Bureau.as such. In other words, the 
Applicant company was barred not- only from preventing tbe author 
of advance programmes, namely tbe Centraal Bureau, from enjoying 
the full benefit of tbe publication of these advance programmes 
but also from benefiting from the. v/ork of someone .else. This 
benefit had been the Applicant's'sole intention and this 
intention was in no way protected hy the Convention,'
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The 'Applicant company .replied thatj according to the 
decision ,of the.-Suprerie Court j it did not have j. under Dutch 
lavv, the freedom or the opportunity ‘to take., -transcribe,' 
copy ‘lawfully from,- the compilations of-the Centraal Bureau 
in order to'produce in the w.eekly magazi.ne Televizier ' the ' 
forthcoming- radio and televisio‘ii ■ programmes of the Du-t.ch 
broadcastlng;,corporations. 
r 
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As‘ a ^result the -rights and freedoms defined- in Article lO 
of the Convention Wvore-violatedo The, right 'to freedom of 
expression, which everyone possessed,- included freedom to hold 
'opinions'-and to receive and impart information-and ideas without 
interference by public authority and regardless of frontiers.
The Applicant submitted that the Government had based its 
argument on a number-- of ass'umptions which were ■ incorrect and 
in no v/ay supported by evidence. ' One - particular issue was not 
agreed by the' parties .and,had not been determined by the judge, 
namely'that -the organisations’ or persons, which received the 
compilations^of the Centraal Bureau .had the obligation nottto 
forward these compilations to 'Televizie’r, further, that one or 
more of the addresses had been induced by Ihe Applicant to 
send.it the compilations and^, finally that this had in fact . 
beendone. 
' 
' 
/
In the Applicant's opinion, the Government's conclusion 
that the Application shouJ-d be declared inadmissible was ■ 
apparently based on two different groundss first, that the 
compilations had 'the character,of private letters secondly 
that Article 10 of the Convention did not impose any.obligation 
to reveal information, -Thus, the Government apparently'argued 
that the complaint by Televizier implied that the. fact of the 
Centraal Bureau not- revealing information about,the compilations 
would'be a. violation of Article 10 of the Convention,.
In this respect, the Government misjudged the complaint 
by Televizier and the basis .thereof. The compilations 'bf 
the' Centraal Bureau did not have the charactex’' of private 
letters.’. The Supreme -Court had decided in its. decision-'.of 
25th June, 1965 3 that the compilations were to_ be.-considered 
as,pieces of writing which were meant by,the Centraal Bureau 
for publication and that such publication was effeçtèd'by 
mailing them to about one hundred- foreign'..broadcasting'-organi­
sations and newspapers. The Government aileged^-tlj^t Televizier 
had received the compilations from .-one of'.more, of'thesè broad­
casting organisations and newspapers. ' Théréfore the'compilations 
did not have the character of private letters but of pieces' 
of writing already .published or at least meant for publication.
2690/65
- 14
furthermore J according to thve Applicant's su.bmission, 
the Government had failed to appreciate that the point of 
view of the Applicant was not, that the Centraal Bureau had 
an obligation to reveal to Televizier inforniation,in parti­
cular, as to the compilations. That problem had in fact been ■ 
the subject of other legal proceedings but, in the present_ 
Application, those proceedings and the obligation to reveâï 
were not involved;, . The present: Application contained a 
complaint that it was forbidden to use'the' compilations, when, 
and if, they were available \o the Applicant company ^ fo'r the 
publication of programmes in,its magazine.
The arguments of the Government as to the inadmissibility 
of the- Applicatioa therefore failed and should be- rejected,-
As regards the situation in the Netherlands as to infbrmation 
given to- the Bute-h. people on radio and televi.sio-n pro-gramme's,, 
the Ap-p-licant submitted that tha Butob broadcasting,. eorporations- 
('.AV-RO, KR0-, NCRV,. YARA and VPÏÎ0 )', tried to acquire a monopoly 
w.-ith regard to the publication, in print of radio and- t-el-evision 
programmes'. One of their means w^as the Copyright Act-,- Thé 
Centraal Bureau was a corporation founded by the' broadcasting 
corporations. There were two reasons-'why the broadcas-tih'g- 
co.rporations'. wished ta acquire this monopoly.
According to the Applicant-, the first reason- v;as the- 
fo.llowin-gs the right ■ to be a broadcasting o'-rganisatioh and 
the- number- o-f hours, of broadcasting t-ime for- a broadcasting 
O'rga-nisation depended,, according., ta the relevant legal!-, provisions, 
on the- momber- of members of a broadcasting' organisatid-no 
Therefo.-rethe broadcasting- corporations, had an interest' to- 
have.. as-: many members as possible.. Thé broadcasting- co-rporations 
e.a-,c-h published a weekly magazine . containing'little mo-re than 
the- radao' and television pjrogrammes. In actual practice- one 
was; at; the same time member of the broadcasting corporation' 
and', suhsc-riber to the magazine of the broadcasting- c-orp'dra-tio'n-- 
con.G.ernedh If other- weekly magazines- also published the^ 
broadcasting programmes,, the broadcasting corporations': fear-bd 
that'- their- members' w.ould end their subscription to- the.ir' 
magazine.S' and. thereby the membership of the broadcasting; corpo'^- 
radions concerned, and; v/ould subscribe to those- other''week-fy-, 
magaaines. Therefore, the broadcasting corporations-' sou-ght- 
t.o-' acquire a monopoly in the weekly publication in- print of- 
the- radio and television programmes and to prevent other week-ly'
/
-• 15 -
2690/65
magazines from publishing the radio and television programmes «
The-Applicant.was of the opinion that this reason was neither 
reasonable nor healthy, A broadcasting corporation- should get 
and k-eep its members by. virtue- of the quality o'f its broadcasts 
and- not. by .a monopoly in the news servic.es on radio 'and television 
programmes, 
■ 
. ' 
. ■ ■ . -
■The second reason vv^hy the broadcasting corporations wished 
to .acquire a monopoly in the news services on radio and television 
programmes was that they desired the additional income vv'hich 
could be obtained.jby the exploitation of that monopoly, J?hat 
motive v/as als.o unreasonable and unhealthy, , The broadcasting 
corporations' v/ere in a position to create their radio and tele­
vision -.programmes out of the,.income which .they enjoyed from the 
fees collected, on the-:basis of legal; provisionsby .the Nether­
lands Government, from the owners of radio and television sets.
It was quite wrong that the'- broadcasti;ng corporations, being 
corporate bodies according to private law, profited exclusively 
.and for their own benefit from the news .services on the programmes 
paid for by all Butch people-,
\
‘ 
r
The information about radio and television programmes 
in the Netherlands could.be divided into weekly information and 
daily information. As.to daily information, the broadcasting 
corporations■had permitted the daily papers to publish in an 
abbreviated and inconspicuous manner -the broadcasting programmes 
for the following day or sometimes the.following two days. The 
Butch public, however, was mainly -interested ’ in i.nformation 
covering a full. week,. The -pi.iblic fell a need for weekly programmes^ 
with comments beforehand and after-wards,- In that respect the 
broadcasting corporations a^ctually had,- by means, of their weekly 
magazines, a monopoly which was broken only by Televizier,
It was .obvious tbà’t the ' broadcasting corporations did not give 
in.their magazine a frank criticism of their own programmes.
At this moment Televizier was the only weekly magazine in., the 
Netherlands which reproduced .the 'radio ..and television programmes 
and, in addition, a fraiik and independent critcism of .these. 
programmes. The broadcasting corporations did-their best to 
suppress Televizier, ■ 
-
According to tbe■broadcasting.corporations and the Gentraal 
Bureau, it' was impossible to get knowledge of the broadcasting 
programmes in any other way than from pieces of writing protected 
by the Copyright Act, inter alia the compilations of the 
broadcasting corporations and the Gentraal Bureau. The
2690/65
- 16
Applicant denied this. However, to get kno'wledge of the hro’ad- 
casting programiiies otherwise than from these compila'-Iona 
rec[uired a great deal of effort and sc much money that all 
weekly magazines in the Netherlands except Televiaier refrained, 
from publishing the broadcasting programmes. This meant an . 
-
illicit infringement of the freedom of expression.
The Applicant pointed but that, according ,to the Government, 
Article' 10 of the Convention was not meant to serve the commercial 
interests of the editors of newspapers or magazines,' When stating 
this, the Government failed to appreciate that everyone had 
the right to -freedom of expression; furthermore, this right 
Included freedom to hold opinions and to receive and impart 
inform.ation and ideas without in':erference by public authority 
and regardless of frontiers. It was irrelevant for which reason, 
commercial or non-commercial, a person was moved to make use 
of the freedom of expression, 
_ 
' 
■ 
■ . 
■
Furthermore, the Government had failed to appreciate that 
ultimately the interests and freedom of expression of the Dutch 
radio. listeners and television watchers, of v\^hom several'hundreds 
of thousands' were 'subscribers i^o the Applicant’s weekly magazine, 
were■involved. All these people were certainly not moved by 
commercial motives, ■ In this connection it should be observed ' 
that the Applicant's weekly magazine was more expensive -than 
both the membership of any of the broadcasting corporations and 
a subscription to its weekly magazine together'.
In so-far as the Goveriiment had stated that the Diutch 
Copyright Act was not contrary to the Convention, the Applicant' 
replied that, according to the Supreme Court's interpretation 
of the Copyright Act, the Applicant was i.ot allowed to take, 
transcribe or to publish in its magazine such radio and' . 
television programmes of the broadcasting corporations as were 
contained in-the compilations. This restriction applied even 
to a non-verbal or non-literal reproduction or one with additions ■ 
and deletions, , The public had no ’ need for just a' fev/ items . 
of a programme but for the complete programme. According to 
the decision of the Supreme Court, the broadcasting corporations 
and the Centraal Bureau, by putting the programmes in writing, 
could monopolise the contents of that piece of .writing-.. In this
- IT
2690/65'
conn.ection it-s,hould be considered^ that these compilations,- 
as'te.d b;e'en ascertained by the Supreme Court, had no'literary, 
-‘scientific or artistic value and lacked- a distinctive; or' 
personal nat-ure.;' furthermo're, such 'value or. na.ture, ifpresent, 
.could be-, a^^'ground for protection of-these pieces of writings 
It y/as-.vt-h,e''law .of the' nineteenth c’ehtury, and before, "in’ the 
Netherlands, 'which had influenced the Copyright Act of 1.912, 
and;-had .been"-the'reason that this -Act ' protected piepes of 
writing without a distinctive or personal nature.
; The-'Applicant concluded that, in so far as the Copyright Act 
■as- interpreted by the ■ decision of the SupremeCourt of ' 25th 
June-., 1965, prevented Televizier from using-the ■ compilations- 
for its publications of the programmes, there was a violation 
of Article lo of the Convention.
Does the complairtt fall under the ' limitation'rule . in 
■ Article" 10 , paragraph ~ ( 2 ) / of the Convention
The Government "emphasised that its main submission was 
Ihat the right to frëedom of expression was not concerned 
in the present case.-' If,' however, the "Commission did not 
accept-'this argument,- the G-overnment maintained, in the alter-, 
native, that the case was covered hy the limitation mentioned 
in Article' 10, paragraph (2),' of the Convention and that'it 
was' inadmissible on that ground. According to this provision, , 
the exercise of the freedoms described in paragraph (l) of 
■■the same Article "may be subject to -such . restrictions 
.
as. are prescribed by law and are necessary in a democratic 
society .... for the. protection of the 
rights of others".'
If it was to be assumed that, the publication of a copy of any' 
pièce of writing came under the term "to impart information", 
then any copyright law was, according to- the^ Oovernnient, a 
restriction on the freedom of expression. Any scientific book 
or paper contained "information"..* E^very copyright law prohibited 
the publication of'such a hook or paper without the consent of 
the author. The legislations of all Parties to the. Convention , 
■included a copyright law-which- to a greater or lesser extent 
prohibited such- publications. ■: Therefore the■eopyright which a 
person held'by'virtue of the domestic law of one- of the Parties 
to the Convention 'clearly came under the term "rights of othôrs"
2690/65
18 -
in paragraph (2) of Article 10 although the Convention did 
not define this term» It obviously left the definition of 
these rights to the discretion of„the Parties to the Convention. 
The words "necessary in a democratic society", imposing a 
certain restriction on the power, to make lav/s, -should be read 
in connection w^ith the words "in the interests of national 
security, ■territorial integrity or public safety"-as they did 
not make sense in the context of the protection of the "rights 
of' others". At most it might^be ar^ed that the- Convention 
prohibited a. signatory State from curbing the freedom of 
expression-in■a way contrary to the demands of a democratic 
society, under the guise of a law;conferring a "right" on some 
person or persons.- Clearly this was not the case.with the 
Dutch Copyright Act..-
According to the Government, it was not relevant whether 
or not -the Berne Convention on the protection of literary and 
artistic works extended protection to works lacking a■distinctive 
or personal nature.’ ■■ The'Berne Convention was -not intended to 
replace the various Copyright 'Acts of the signatory States but 
obliged these States to give the same protection to authors of 
other signatory States and to works publishe.d for the firstitime 
in other signatory States as. to their own subjects and to 
works published for -the first time in their own countries.
In addition the Berne Convention contained certain rules 
providing for the minimum of protection and'the maximum of 
exceptions to, and of restrictions on, .the protection to be . - 
given in the domestic laws of the signatory States. These 
States were not prohibited from extending the protection conferred 
in their own laws'beyond the minima stated in the Berne Convention. 
The copyright laws of. most of the States adhering to the Berne 
Convention differed to some extent from the Convention and from 
each' other. None of this was contrary to the Berne Convention 
or to the European Convention for the protection of human rights 
and fundamental freedoms.
The Government also referred to its statem^ent as quoted 
above regarding the limited scope of the protection granted by 
the Dutch Copyright Act to writings without a personal character.
It granted the benefit of publication to the author of the piece 
of writing concerned'and denied this'advantage to the -person 
who wished to publish for his own purposes the piece of writing 
of another. A cursory examination of the laws of other States 
signatories to the - Convention revealed that the Netherlands was 
not the only State in which the acts for which the Applicant 
sought freedom from interference v/ere considered unlawful.
Sometimes this protection was given by copyright law and some­
times by the .law regarding unfair competition.
j.
- 19 - -
2690/65
>v
In any case, the Convention did- not, in the Government's 
opinion.,- -prohihit Dl.itch law from declaring these acts .unlawful.
' ' 
, ' The Applicant company sulsmitted that the copyright on,
weekly radio programmes did not fall under the exception, of 
'Article.'10, .paragraph (2), of the Convention.' In, particular, 
if did not come under' the restrictions , as are prescrihed 
hy law and are'necessary_in a democratic society, in the . 
interests.of national security, territorial integrity or.public 
safety'.., for the protection; of the reputation or rights' of, 
■others". for, according to the decision of the Supreme Court, 
the compilations had.no literary, .scientific or artistic value 
and 'no distinctive or personal nature. They were not;the result 
of creative work. If the compilations had had these qualities, 
there probably would have been no question of, a violation of 
Article 10 of the Convention, Under the Copyright Act the 
protection of pieces of writing without distinctive or personal 
nature in the Netherlands was a-conse'q.u€nce of the lav; in former 
times when democracy and the human rights here involved were 
not yet part, of Netherlands law.
Contrary to the Government's submission, a copyright' pro- 
.tection of pieces of writing v;ithout distinctive or personal' 
na.ture could not be found'in other, democratic countries or ,
,at any rate,, only in very exceptional, cases'. . Also the Berne 
Convention described ; .the works to be protected as "oeuvres ■ 
littéraires et' artistiques", comprising "toutes les productions 
du domaine littéraire, scientifique et,artistique". ' The fact 
that the signatory States could deviate from;this Gonvention 
did not influenc e’ôii'the Applicahf's ref erenc.,e ; to-'the Berné 
Convention, 
, 
'
.\"It was also'.'quite incorrect that the words "rights of 
others "-'laft" the definition of'these rights'.to the. discretion 
o,f the Parties to the. Convention, If that were the case, the 
freedom.of expression and the securing of that freedom would- 
npi;^ be ef.fe'ctive, , The words preceding "rights ofdothprs"' 
in/.Article 10,' paragraph (2), set out the relevant limitation. 
The'Wfords "necessary 'in a-democratic society" did make-sense- 
in -the context of the protection of the rights'- of ot-hers,' 'One 
should also notevthe co-ordinating use of .’the'words, "reputation 
or rights of others". What was in issue was', according_.to 'the 
Applicant, "restrictions 
as are necessary in-'à ■democratic
society 
for the protection of.the reputation or rights of
others". Restrictions in this sense v/ere out of the question as 
regards the compilations.
2690/65
- 20
The Applicant also referred to the Government's‘statement 
that the protection in question was sometimes pro'^-'ided hy ^ 
‘ 
.
copyright law and sometimes by ’the' law on unfair competition»
The - Applicant considered that incorrect suggestion had thereby 
been made. The Centraal Bureau was'not a"-competitor' of the 
Applicant and did not publish for the purpose of sale or' for 
any commercial.gain of its own. The broadcasting corporations, 
on the other hand, did publish for commercial gain.' However, 
their action in court against the Applicant, based on tort and 
unfair', competition,. had been rejected by the. Court of Appeal-. 
Against, this decision the broadcasting corporations'and the 
Centraal Bureau had not appealed to-the Supreme'Court. finally, 
the■protection of pieces of writing without distinctive or 
personal nature in the Copyright Act had nothing to do .with unfair 
competition.
4• H^sthere been discrimination contrary to Article- 14 of 
the Convention?
The Government stated that the Applicant had not adequately 
explained in what way the complex of facts dealt wmth in the 
Application could be construed as. discrimination within the 
meaning of Article 14. An explanation could not be given because 
the action taken by the Centraal. Bureau would have had exactly 
the same result in relation to' any other person or corporation­
acting as the Applicant had acted or wished to act.
In this respect, the Government pointed out that the Supreme 
Court of the Netherlands had, or- 25th June, 1965, given another 
decision (No. 9836) in a case between the same Parties by which 
it determined a counter-claim entered by Televizier .in the same- 
proceedings assied to decision No. 9843 of which the Applicant 
complained in the present case. Article 14 of the Convention was 
the subject, of this other decision., The Applicant had asked 
the Courts to rule that the broadcasting organisations and the 
Centraal Bureau should be obliged to impart to Televizier on 
demand the full contents-of the forthcoming w^eekly radio programme 
This claim was based on the alleged right under, inter alia, 
Article 10 of the Convention to receive information as to the 
fixed,but not yet published programmes of‘the broadcasting 
organisations and the Centraal Bureau. It was .also based on 
the allegation that the broadcasting organisations and the
- 21
2690/65
Centraal Bureau practised discrimination within the meaning of 
Article 14 of the Convention by coimnunieating this "news", 
albeit in abbreviated form-, to the daily newspapers but not 
to Televizier. .l.Éis claim was rejected in three instances,
Thè 'translatiori^ of "the relevant passages of the Supreme Court's 
•decision is as follows':'
■ "Considering, as to the second part, (of the 'means pf\ 
cassation') that the Court of Appeal has established as fact,,
'that 'Televizier, in respect of the publication of programme . 
descriptions, .must be regarded as a competitor of the broad­
casting organisatiors and that this is not the case with the 
daily papers and the foreign papers v/hich are concerned in the 
activities, described under a-e (viz. inter alia:, imparting 
the programme - descriptions),, of the broadcasting'organisations 
and- the Centraal Bureau acting in the . interests, or these organi­
sations and that the broadcasting organisations have a substantial 
interest in the' publication of the broadcasting magazines, the 
editors and‘publishers of which are also' concerned in these. 
activities;
, 
■ that the Court of Appeal rightly concluded from the fore-
'going, regardless of whether the broadcasting organisations 
may be regarded as publishers' of the broadcasting magazines, 
that the- broadcasting organisations and the Centraal Bureau 
have reasonable grounds for the alleged unequal treatment of 
Televi'zier, and that they are not obliged to 'act towards Televizier 
i'n the same way as they do towards the aforementioned, papers ;
that it makes no difference that the general interest may 
be served, as the District Court has established, by Televizier 
also receiving for its own ùse the information imparted to others 
by the broadcasting organisations and.the,Centraal Bureau; '
that-the second part therefore is submitted in vain."
The'^ Government concluded that the plea of-unlawful discrimi­
nation had been rejected'by the Supreme Court although Article 14 
of the Convention had been cited explicitly, and that the Applicant 
did not complain of this decision in the present case. , Therefore 
it v/as not necessary to go further into this matter.
2690/6!5
22’ -
finally, in referring to',a .statement made l>j tb'e Applicant'., 
to'the effect that tbe "broadoasting corporations- ted ■'^a wrongful^ * 
improper a,nd unjust monopoly in the neAvs aervlces-on forthoomihg 
radio and television events-in the. Netherlands the Government 
observed that every owner of an.ohject,- as every owner of a- 
copyright, was a monopolist in as much as his right was exclusive', 
Ho;W far his monopoly extended and to what degree it should he 
limite,d in the e.omfflon inte-resir was a matter fo'r domestic légis­
lation,, Regarding, the free flow of informatio-n, the hutch 
legislator- had strictly limited the monopoly of anyone whd 
migh.t: clanm: a copyright on. information,-
Th.e, Applicant replied that' Article 14 of t-he- Convention was 
at. issue as.^'^'h.e. s.tatutory prohibition for the^ Applicant c'ompàhÿ 
to.: use- th.e compilations- for its- own puhlicati-on had,- àS'’ a 
G ons-eq_uence' not only that t'he- hroadcasting Gorporatidns'' and 
t-helr magazines had availahle ^ the- data, on the programmes 
■ ' '
w.hile. the. Applicant, nothut- even that foreign weekl-y magazih-es'/ 
w.hich. vfere- sold in the Netherland-s could freely puhlish'^ the 
Dutch, radio-'and television programmes (and did sot vfhile- the’’ 
Appli.ca-nt was not- a-bl.e-- to do- so-.
The. Applicant considered that- decision' Nol- 983-6 of the 
Supreme-; Court need- not be discussed in, connection with the-' 
present Application,. This decision did- not involve, u'sihg: 
the compil-ations- for publication of programmes. In those- pro-' 
ceedlngs-. the Applicant, alleged' that^ the broadcasting cof—' 
poratlons- and: the Centraal Bureau had' the- oblrgatloh- fo- 
communlcate. the compiTatlons to.-- Televlzler at the s'-ame time- 
as-' to. the. foreign, addresses. The.-present complaint-wa's-^ no-t' 
c.oncerned.i with, this- q.ues.tlon but only with-- t-he^ use- of the 
c-ompllatlons. for-publication of programmes^mentioned- therein'','.
As-to. the final- remark* of the- Government,- the- Applicant-- 
obs.e.rved; that, the-, (Question w^hether,- as' regardb^ in- partl'cüiaf' 
the.-? compilations ,., it was- permissible- to confer" a copÿr-ight- 
pro.tectio.n,,, was- not one of domestic legislation- but-' of freedom-- ■ 
of. expression--within the meaning, of Article 10 of -'-the ■ Convention; ■
./v
23
2690/65
THS LAW
Whereas the Gonnnission finds it necessary .first to 
examine the Government's general objection to the Appli­
cation's admissibility, base'd on the submission that the 
Applicant - could not, at the pres-ent’stage of - the proceedings- 
before the domestic courts, be considered a "victim"- of àn- 
alleged. violation of the’ Convention within the meaning of 
Article 25 of the Convention^
. whereas in,, this...regard, the .Commissi-on. observes.,that . 
the Supreme Court's decision of 25th June . 1965-Constitutes, 
a final ruling on the legal question as to-whether the compi­
lations of the Centraai Bureau are protected under the Dutch 
Copyright Ac.t,; • w.hereas ,, in ,.particular, it .follows -from, the 
Supreme Court's decision that the Applicant company could not 
publish the compilations concerned without contravening the 
Copyright Act;.
whereas the subsequent'proceedings before the domestic 
coiirts^Qoncern certain points ' of fact and do not affect the 
position taken by the Supreme Court on the,l.egal point of 
principle; 
/
whereas, therefore, the Commission is 'satisfied that the 
Applicant company, in respect of the alleged violation, of 
the Convention resulting from the Supreme Court's decision, 
is to be considered a "victim" within the meaning of Article 25 
of the Convention;
Whereas the Commission adds that, as a result of the 
proceedings before the Supreme Court, the Applicant company'' 
has, in respect of its complaint before the Commission, 
exhausted the domestic remedies within the mean,ing of Article 26 
of the Convention; that this situation is not affected by 
further proceedings on certain points of fact which are still 
pending before the Dutch courts;
Whereas the Commission has carried out a preliminary 
examination of the Applicant's allegations in the light of' the' 
subsequent pleadings by both Parties; whereas the Commission
2690/65
24
considers that the Application gives rise to a numher of 
important issues regarding the interpretation of the 
Convention; wherea,s these' issues are of such complexity 
that the determination of the Application should depend upon 
an examination of the merits of the case; v/hereas it 
follows that the Application cannot be regarded as manifestly 
jll-founded within the meaning of Article 27? paragraph (2)? 
of the Convention and cannot, be declared inadmissible;
For' these reasons rand without in any way pre,judging 
the merits of the .case, the Commission
DECLARES ADÎ'LLSSIBLE AND' ACCEPTS THE APPLICATION
Secretary to the Commission 
Vice-President of the Commission