Does the ruling of the Court of Justice of the European Union of March 6, 2025, in the ONB case change the Dutch employer’s copyright?

Facts

The National Orchestra of Belgium or Orchestre National de Belgique ("ONB") conducted collective labor agreement negotiations with the musicians' unions between 2016 and 2021. These negotiations also addressed the remuneration musicians would receive for their performances.

The negotiations failed, and individual musicians successfully challenged the ONB’s exploitation of some of their performances via streaming services. In response, the ONB requested the Belgian government to establish the musicians’ remuneration by Royal Decree.

The subsequent Royal Decree stipulated that performing artists employed by the ONB were required to automatically transfer their neighboring rights arising from ONB performances to the ONB in exchange for a fixed annual fee of €600.

Dissatisfied musicians then petitioned the Belgian Council of State to annul the Royal Decree, arguing that it violated EU law. As a result, the Belgian Council of State referred questions to the CJEU.

CJEU Ruling

The central question in the ONB case was whether a national regulation violates EU law when it mandates that performing artists'[1] neighboring rights, which arise within the scope of their employment, are automatically transferred to their employer for exploitation without their prior consent.

Performing artists have the exclusive right to authorize or prohibit the public disclosure of their performances, as well as the fixation and exploitation of these performances. This means, for example, that musicians in an orchestra have the right to approve or deny the recording of their musical performance and its exploitation via platforms such as radio. These rights are broad in scope and preventive in nature. Musicians must give prior consent for the reproduction and distribution of their performances; otherwise, it constitutes an infringement.

The Court ruled that the statutory transfer of these rights from performing artists without their prior consent is contrary to EU law unless it falls under a specific and limited exception. In this case, no such exception applied. Consequently, the Royal Decree was deemed incompatible with EU law.

The Court further briefly addressed the conditions under which an artist’s consent must be obtained. Consent must be secured through individual or collective negotiations or must be formalized in a regulatory act. Contractual freedom plays a crucial role in this process, as it ensures a fair balance between rights and interests.

Implications for Dutch legislation

The Netherlands has article 7 of the Dutch Copyright Act (in Dutch: "Auteurswet" or “Aw”), which regulates employer’s copyright. This provision serves as a "safety net" when contractual agreements do not specify who owns the rights to works created by an employee in the course of their employment. Article 7 Aw stipulates that if an employee creates a copyright-protected work within their employment, the rights automatically belong to the employer. This does not constitute a transfer of copyright; rather, the rights directly belong to the employer.

Article 7 Aw is not mandatory law and allows for contractual deviations from the main rule. This, along with the fact that no rights transfer occurs, means that the ONB case will not directly impact Article 7 Aw. Nevertheless, the ONB case does put Article 7 Aw under pressure, as it also concerns the automatic distribution of neighboring rights and copyrights to employers without directly ensuring fair compensation for the original creator.

Recommendations for employers

Since the ONB case further challenges the validity of Article 7 Aw, it is advisable to prevent discussions regarding the ownership of works created during employment. We recommend including a standard clause in employment contracts that explicitly provides for the transfer of all intellectual property rights arising during employment. These rights can be assigned in advance.

Do you have questions about how to best include this in your employment contract? Or any other questions arising from the above? Feel free to contact Michelle Westhoeve or Evianne Roos.