Architect Eindhoven Airport cannot prevent expansion by invoking moral rights

Moral rights of architects keep the construction industry busy and discussions related to these rights may delay or event prevent the start of building projects. In July 2024, Manon van Weezel and Lucas de Groot already shared their views on the decision of the District Court of Amsterdam relating to construction activities of the famous office building “The Rock” in Amsterdam. In that decision, the architect’s claim on moral rights to prevent renovations was denied because the owner had a legitimate interest to update the building and make it suitable for new tenants.[1]

This article regards construction activities in the second Dutch city where Taylor Wessing holds office, namely Eindhoven: on 19 February 2025, the District Court of Oost-Brabant, located in Den Bosch, rendered an interesting decision on moral rights.[2] The architect who was involved in the original design and previous expansions of the terminal of Eindhoven Airport, but did not contribute to the design of the scheduled expansion, initiated preliminary injunction proceedings to stop the construction activities arguing these plans infringed his moral rights.

Legal framework Dutch moral rights

Before discussing the details and outcome of this decision, we will first mention the relevant legal framework included in the Dutch Copyright Act (“DCA”) and discuss the difference between copyright protection and moral rights.

In accordance with Articles 1 and 10 DCA, the design of (the interior and/or exterior of) a building can be eligible for copyright protection if it is sufficiently original and reflects the architect’s personality. This means the design must not be derived from existing, previous works and must include sufficient creative choices. The harmonised threshold for copyright protection is relatively low: in practice, even relatively simple designs of interiors or buildings may qualify as a copyright protected work. As a default rule, copyrights vest in the person or persons creating the design or automatically in the employer in case the design is created by an employee of an architect firm. Architects or architect firms in many events contractually assign or transfer the copyrights with respect to designs of buildings to third parties, such as construction companies. After transfer of ownership, the construction company has the exclusive right to make the design available to the public (publish it online for example) or reproduce the design (use it to create a building or multiple buildings in accordance with the design).

Next to copyrights, moral rights exist which are listed in Article 25(1) DCA. These rights also automatically come into existence upon creation of the work, but in all events only vest in the natural person or persons creating the design (in the case of building projects, all architects involved) and, contrary to copyrights, cannot be transferred.

With respect to construction activities and the alteration of buildings, the most relevant provisions on moral rights are Article 25(1)(c) DCA, which includes the right of the author to oppose any alteration to the work, unless the nature of the of the alteration that opposition would be unreasonable and Article 25(1)(d) DCA, which includes the right to oppose any distortion, mutilation or other impairment of the design that could be prejudicial to the honour or reputation of the architect or his dignity as an architect. Moral rights can be waived, except for those under Article 25(1)(d) DCA.

Eindhoven Airport Decision

In this recent decision of the District Court of Oost-Brabant, located in Den Bosch, the architect involved in the original design of the terminal and earlier expansions opposed the scheduled further expansion of the terminal and relied on Articles 25(1)(c) and (d) DCA to oppose the planned construction activities.

The architect primarily invoked Article 25(1)(d) DCA and argued this provision was applicable because the planned changes were clearly visible from inside and outside the airport and would impair the harmony and play of lines of the current design. This would therefore violate this provision, especially since, according to the architect, there were alternative, better ways to expand without impairing the formal idiom. The architect alternatively relied on Article 25(1)(c) DCA and noted the planned expansion was not in accordance with the earlier plans on expansion and there was no necessity and reason to use this particular design by third party EGM, especially since it would clearly negatively affect the interior and exterior features of the building. The architect further argued he should have been invited to think along with EGM and it was unreasonable that, after taking note of EGM’s plans and offering to review these, Eindhoven Airport did not accept this offer.

Eindhoven Airport contested that Article 25(1)(d) DCA was infringed and argued the current building was not affected, because the extension would mostly be placed next to the current building and only minimal changes would be made to the current building to connect it to the two new buildings. Further, Eindhoven Airport refuted the architect could successfully rely on Article 25(1)(c) DCA arguing opposing these changes would be unreasonable, because the airport is required to expand and delaying or changing the plans at this stage would have extreme unwanted consequences. Lastly, Eindhoven Airport held the architect could no longer rely on this provision, because the architect was invited to attend the tender to compete for the design of this addition to the terminal, to which invitation he did not respond. It is relevant to note the architect had previously agreed to not rely on his moral rights with respect to his design, under the condition he would be involved in all future plans of the airport.

The architect’s claims where however all denied, and the Court firstly held that Article 25(1)(d) DCA was not breached because the planned construction activities did not result in “distortion, mutilation or other impairment”. In accordance with case law of the Dutch Supreme Court[3], this provision only applies in case changes lead to reputational damages and if the changes alter the copyright protected features, which is not the case according to the Court. The current design, including the Dakota wing, V-shaped pillars in the existing hallway and curved rooftop remain the same and the new entrance hall will be placed in front of the existing terminal with the current entrance hall. The Court therefore holds the minimal changes to the harmony and play of lines do not result in a change of the formal idiom.

Current terminal built in 2013 [4]	Planned expansion of the Terminal designed by EGM which includes a new entrance hall placed in front of the existing terminal and entrance hall [4]

Secondly, the Court also dismissed the claims based on Article 25(1)(c) DCA. Although the Court disagreed with Eindhoven Airport that the architect could no longer rely on his moral rights and had waived these by not responding to the invitation to participate in the tender, it held that Article 25(1)(C) DCA was not infringed. The Court noted that, although the planned expansion did alter the design, opposition against these changes would be unreasonable in the given circumstances and took into account that the terminal needed to be expanded due to the increased amount of travellers and that the architect, involved in the initial design and earlier expansions, should have been aware of the fact that his design was likely altered in the future. Further, the Court considered that the architect was invited to take place in the tender, to which invitation he did not timely respond. He only opposed to the plans after all permits were already issued, which made relying on this provision not reasonable. The Court lastly took into account that if the construction would be postponed, this would result in significant additional costs, estimated at EUR 6,5 million.

Conclusion and takeaways

In conclusion, this decision confirms that moral rights are of high importance to take into account in building projects. Construction companies and other parties, such as municipals, should therefore address moral rights in the relevant development or design agreements with architects, and include a contractual clause that assures all moral rights are waived to the extent permitted under Dutch law.

Additionally since the moral rights under Article 25(1)(d) DCA cannot be waived, parties should be aware proposed changes may not distort, mutilate or impair the existing design. This provision is however only applicable in case of reputational damage and distortion or mutilation for which an abstract test is applied that takes various circumstances into account, including the nature and severity of the impairment, the reason for the scheduled changes, how well-known the original work is to the public, the visibility of the suggested changes and the time that has passed between the original design and planned alterations.

Therefore, construction companies are advised to assess if there is a valid reason for the desired changes and may consider, before finalising the building plans, to involve the architect of the original design to hopefully avoid discussions in a later stage based on Article 25(1)(d) DCA.