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On damages and responsibility

My newspaper — the NRC — contains an item de uitspraak on page two once a week that deals with some recent court ruling. This week it is a copyright-related item, probably spurred on by last week’s controversy about rights payments on embedded videos on personal websites.

I’ll translate and quote parts of the column here, because it is of interest. This is transformative in nature and thus creates a derived work. Let’s think that this particular derivative work falls under “fair use” (which doesn’t exist as such in Dutch copyright law).

To start off, it’s not actually a copyright item; a 15-year old posted a copyrighted photograph which he had found with image search on his own website. He did this twice. An earlier case awarded the rightsholder (the photographer) EUR 4000 in damages. That seems a bit excessive to me, but .. in any case, the kid did not pay, and now the rightsholder is suing the parents for the same damages.

So this case actually is about claiming damages from parents, in particular because of the responsibility that parents have for the actions of their children. Dutch law says “Responsibility for damages caused to third parties by a child, 14 or 15 years old, lies with those who exercise parental control, except if they cannot be blamed for not preventing the actions (causing the damage) by the child.” Ugh, that’s convoluted, and “parental control” is something called “ouderlijk gezag,” which may be exercised by natural parents or foster parents or in some cases an institution.

According to de uitspraak, the considerations in this case were that a 15-year old has a reasonable expectation of autonomy and that non-stop surveillance is not to be expected (heck, I don’t watch non-stop over my kids when they’re surfing, and they are 5 and 6 — but then I do try to start them in a safe place of the net). So letting kids do “stuff” on the net is not a reason in itself a reason to expect surveillance. The judge also states that it need not be considered unusual for kids to maintain a website. As a result the parents are not held responsible for the damages.

Note that this says nothing about the damages awarded earlier: presumably the kid still owes 4k from the original case. It does, however, say something about where parental oversight is expected for kids doing things on the net.

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2 Responses to “On damages and responsibility”

  1. Bob Smits Says:

    What I don’t understand is the basis on which the copyright holders got 4000 euros damages. First, the kids website isn’t a commercial site, so they’re not making money. Second, it seems very exorbitant for one picture of a soccer player!

    But rights holders here in Canada are coming up with additional ways to charge all the time. If a dentist goes and buys a music CD to play in his office the copyright police will demand he pay a performance right, even though he paid for the CD!

  2. adridg Says:

    I don’t have any of the details of the previous case; as for music in the office, well .. music is different, and it’s considered a public performance if others hear it. That’s why bars pay additional rights for the music they play. In the UK, there was a case with a chain of car repair places where the mechanics played the radio loud enough for customers to hear. But ringtones are not a public performance .. the whole thing is bewilderingly complex.