The ONB decision: the consequences for Dutch legislation and employment agreements

On 6 March 2025, the Court of Justice of the European Union (“CJEU”) rendered a ground-breaking decision that resulted in a legal discussion between various Dutch lawyers and employers on the consequences of this decision on the Dutch legislation related to employer’s copyright.[1] It seemed as if the CJEU completely banned any form of national legislation transferring the copyrights to anyone other than the author without the prior consent of the author. Is this indeed the case?

We already shared a contribution about this case, specifically on its practical implications and the action points for employers. In this additional article, we will provide a more in-depth analysis on the effects of this case on Dutch copyright legislation in light of this and other CJEU decisions.

What did the CJEU rule?

The ONB decision concerns a dispute on neighbouring rights between the Belgian National Orchestra (“ONB”) and the musicians employed by ONB. The Belgian government published a statutory arrangement (the “Decree”) which dictates that the musicians’ neighbouring rights to their performances are transferred to ONB in exchange for a fixed remuneration for their performances. The musicians argued that this Decree violates EU law and should therefore be annulled. The Belgian Council of State referred the matter to the CJEU.

The CJEU held – in accordance with the opinion of AG Szpunar in this matter – that various provisions of the Copyright Directive 2001/29[2], Directive 2006/115[3], and Directive 2019/790[4] preclude national legislation which provides for a statutory assignment of neighbouring rights of employees to the employers without their prior consent. This is precluded unless that assignment is covered by one of the exceptions or limitations provided for by EU law. However, no exception or limitation allowing the general assignment of rights without such prior consent of the proprietor exists. This means, according to the CJEU, that the Decree indeed violates EU law.

Therefore, it is clear that prior consent is required for a transfer of rights. In the Spedidam decision of 2019, the CJEU already observed that EU law does not specify how this prior consent should be given.[5] The CJEU in the ONB decision considers that Member States are free to establish methods for granting consent and specify the methods of representing multiple performers participating in the same performance when exercising their rights. This will probably result in unions and collective management organizations.

In this case, it is common ground that the musicians did not grant their prior consent for the exploitation of their exclusive rights. Therefore, in absence of prior consent, EU law precludes the assignment of the neighbouring rights of the artists, as effected by the Decree.

CJEU: Kwantum v. Vitra – limitations and restrictions are harmonized

We believe the outcome of the ONB decision is only logical after the decision by the CJEU of 24 October 2024 in the furniture matter between Kwantum and Vitra.[6]

In that case, Vitra claimed copyright protection in the Netherlands and Belgium for the ‘Dining Sidechair Wood’ (“DSW”), of which the country of origin is the United States of America (“U.S.”). Vitra noticed that Kwantum was marketing the ‘Paris chair’, which, according to Vitra, amongst others infringed the alleged copyrights related to the DSW chair. The most important question in this matter was if this U.S. design was protected under EU copyright law. In accordance with the reciprocity test of Article 2(7) Berne Convention (“BC”), members to this convention are allowed to only grant copyright protection for designs that are also protected by copyright in their country, provided there is special protection in such country for designs and models. Since the DSW did not enjoy copyright protection in the U.S., the question arose whether the Netherlands and Belgium were free to deny copyright protection for this U.S. design.

In short, the CJEU held that only the EU legislator and not the individual Member States can restrict the scope of application of harmonized EU copyright law. It therefore held that the Netherlands and Belgium as Member States were not allowed to apply the reciprocity test included in Article 2(7) BC and, based on this rule, to make a distinction (discriminate) between works with a country of origin within the EU and works that have a country of origin outside of the EU.

Now, the CJEU in its ONB decision holds that – although the transfer itself is not governed by EU copyright law, but by various national regimes of civil law – a requirement for the transfer of copyrights and neighbouring rights (i.e. prior consent) is now also harmonised under EU copyright law (due to its restriction on the authors/performers rights). Therefore, national legislation assigning rights to anyone other than the author without prior consent of the author is only allowed if this assignment is covered by an exception or limitation provided for in EU copyright legislation. However, EU copyright legislation only provides for specific exceptions and limitations, and does not allow for this general assignment. Therefore, in both decisions, the CJEU ruled that the exceptions and restrictions in EU copyright law are exhaustive. The CJEU aims to ensure harmonisation across the EU and legal certainty for authors and artists, but consequently limits Member States to apply treaties such as the BC and their national legislation on copyright law.

What does this mean for the Dutch legislation and the employer’s copyright?

After the ONB decision was rendered, a discussion emerged amongst Dutch legal experts regarding the implications of this decision on the employer’s copyright of Article 7 of the Dutch Copyright Act (“DCA”), which provision stipulates that the copyright to any work created in a relationship governed by an employment agreement is automatically vested in the employer, unless agreed otherwise between the parties. Taking the ONB-decision into account, it may seem as if this provision is not in accordance with EU copyright law. After all, Article 7 DCA assigns the copyrights of works created by employees to the employer, which could be considered a transfer of rights without prior consent of the employee. We raise three questions in that regard:

1. Does Article 7 DCA constitute a transfer of copyrights?
2. Is the required prior consent by the employee granted by signing the employment agreement?
3. What is the effect of the “unless otherwise agreed between the parties” exception noted in Article 7 DCA?

i) Does Article 7 DCA constitute a transfer of copyrights?

In the ONB decision, the musicians employed by ONB were the initial proprietors of the neighbouring rights who were obliged to transfer their rights in exchange for a fixed remuneration. Before the Decree was issued, negotiations took place between ONB and the unions representing the musicians, which mainly focused on the amount of remuneration the musicians received from ONB for their performances. The negotiations were unsuccessful, which resulted in various musicians initiating infringement proceedings for unauthorized use against ONB, since their music had already been used by ONB on streaming services, without their prior consent. To address the situation, ONB, a government body, requested the Belgian government to determine the amount of remuneration by the Decree. The Decree stipulated that the musicians transferred their neighbouring rights to the orchestra and in return received a fixed remuneration.

As is clear from the above, the rights were initially owned by the musicians and transferred to the ONB. This situation differs from the Dutch employer’s copyright of Article 7 DCA, where the copyrights of any work created by an employee are directly vested in the employer upon creation. This means that the employer is seen as the fictitious author and there is technically no transfer of rights: the employee did not initially own these rights. Under Dutch law, specifically Article 3:84 Dutch Civil Code, a transfer of rights is only possible if the rights to be transferred are sufficiently determined. This, in our opinion, confirms that the general assignment under Article 7 DCA does not result in a transfer: the employment agreement merely creates a valid (legal) reason for the assignment of rights, but Article 7 DCA does not specifically, sufficiently determine the scope of transfer, since it is in most events probably not foreseeable exactly which works will be created and thus transferred.

However, one could also argue that without a provision on fictitious authorship, these rights would have vested in the employee, which means that Article 7 DCA – in effect - constitutes an automatic transfer of the copyrights from the employee to the employer.

ii) Did the employee (implicitly) grant the required prior consent?

We notice a second difference between the Decree and Article 7 DCA: consent. As stated, prior consent is required to transfer copyrights and/or neighbouring rights. In the ONB decision, the unions representing the musicians employed by the ONB first tried to agree on the amount of remuneration for the performances of the musicians. Only after these negotiations failed did the ONB request the Belgian government to issue the Decree, which included a fixed fee that was not mutually agreed upon between the unions representing the musicians and the ONB, but was simply imposed on the musicians. This situation could be considered unfair and, in our opinion, at least lacking the required consent. The Belgian Government and the ONB forced the fixed remuneration upon the musicians without their consent.

With respect to Article 7 DCA, one could however argue that the required prior consent for the assignment was already granted when the employee signed his employment agreement. The employee, at the time of signing the agreement, should or could have been aware that employee would be transferring their copyrights to the employer in return for their salary (a remuneration). In that regard, we note that Article 7 DCA only vests copyrights in the employer if the creation of this type of work is part of the employee’s regular work and fits their job description. This for example means that the copyrights related to a demand letter created by a lawyer are assigned to their employer, but not the copyrights related to a song or novel he/she wrote. The statutory transfer is therefore not only agreed upon but is also limited. In addition, everyone is expected to know the law and the implications of signing an employment agreement (resulting in the assignment of copyright to works created in execution of their employment agreement). Signing the employment agreement could therefore be considered (implicit) prior consent.

On the other hand, employees do not grant consent for the transfer of copyrights with respect to each and every individual work. It could be argued that the scope and content of the assignment is unclear and broad, because the subject matter is undefined at the time of signing the agreement. In addition, the employee is often regarded the weaker party when negotiating on the terms of an employment agreement. It is questionable whether consent can be granted freely in such a relationship of dependence. Further, the default assignment has a negative effect on the negotiation position of the employee: if the employee does not actively negotiate an additional remuneration or asks to exclude (certain or parts of) works created during their employment, the rights are simply vested in the employer. Lastly, although everyone is expected to know the law, this may be different in practice: some employees may not even be aware of (the effect) of Article 7 DCA, which includes default statutory assignment. If the employee is not conscious of the assignment,  consent can possibly not be assumed.

iii) Does it matter that Article 7 DCA contains an ‘unless provision’?

Lastly, if Article 7 DCA does constitute a transfer of rights and if prior consent is not granted, this in our opinion does not necessarily mean the Dutch employer’s copyright clause violates EU law. This is due to the so-called ‘unless provision’.

Article 7 DCA stipulates that the copyrights are vested in the employer, unless parties agree otherwise. The ‘unless provision’ matters for the implications of the ONB decision. One could argue that the default rule remains that, without a deviating IP clause, the copyrights are vested in the employer. In that respect, it is relevant that parties do not always include IP clauses in employment agreements: if parties forget to include such clause, the default rule applies. In addition, employers are often more knowledgeable about the law than employees and may even choose not to include an IP clause in their employment agreement, to avoid any discussions or difficult negotiations. One could say it is questionable if not actively opting out of the default assignment is sufficient for consent.

On the other hand, Article 7 DCA explicitly leaves open the option to contractually agree otherwise, which means the assignment of rights to anyone other than the author is not necessarily imposed on parties. It is the responsibility of the (future) employee to at least be aware of such contractual freedom and the default rule. Therefore, it is in our opinion likely that EU law does not preclude the application of the current version of Article 7 DCA.

What does this mean for Dutch copyright for works of a legal entity?

The DCA contains a second article assigning copyrights to someone other than the physical author, namely to a legal entity. Article 8 DCA stipulates that the copyright to any work disclosed by a public institution, association, foundation, or company as its own, without indicating any natural person as the author, vests in that legal entity, unless it is proved that, under the given circumstances, the disclosure to the public of the work was unlawful.

In our opinion, contrary to Article 7 DCA, Article 8 DCA does constitute a transfer of rights. For example: if a person creates a drawing, that person is the auctor intellectualis of the drawing, which means that from the moment the drawing is created, this person is the proprietor of the copyright to that drawing. If this drawing is subsequently disclosed by a legal entity, the proprietorship may shift in accordance with Article 8 DCA: the rights are transferred from the original author to this disclosing legal entity. As said, this provision only applies to the first disclosure by the legal person and in case the auctor intellectualis did not previously disclose the work. If the provision is applicable, a transfer of rights takes places without prior consent. We have illustrated the difference in effect between Article 7 and 8 DCA below.

In addition, Article 8 DCA does not contain the part “unless the parties have agreed otherwise” and thus in all events results in a transfer without prior consent or the possibility to deviate. The only exception is when the disclosure to the public of the work was unlawful in the specific circumstances of that disclosure, but this escape is broadly formulated and does not equal prior consent. Therefore, we assume Article 8 DCA is not in accordance with the ONB-decision and EU copyright law.

Equivalent in Benelux law relating to employer and client design copyright

The considerations of the ONB decision regarding the preclusion of the assignment of rights without prior consent could also affect the validity of some of the provisions in the Benelux Convention on Intellectual Property (“BCIP”) on employer and client design copyrights. 

Article 3.8(1) BCIP stipulates that the employer is considered the designer of a design created by an employee, unless agreed otherwise. Article 3.8(2) BCIP dictates that if a design is created on commission, the commissioning party shall, unless specified otherwise, be deemed the designer. These provisions are highly similar to Article 7 DCA and also constitute a default assignment of (design) rights created under employment agreements and agreements commissioning the creation of the design, unless agreed otherwise. We therefore refer to the three questions discussed above and believe it is likely that Article 3.8 BCIP does not violate EU copyright law either.

Article 3.29 BCIP however dictates that where a design is created under the circumstances referred to in Article 3.8 BCIP (therefore by an employee or contractually commissioned party), the copyright relating to the design shall belong to the party deemed the designer (i.e. the employer or the party commissioning the work). This provision clearly deviates from Articles 7 DCA and Articles 3.8(1) and 3.8(2) BCIP, since there is no possibility to derogate from this transfer (no unless clause is included), which, in our opinion, makes it likely this provision contradicts EU law.

Conclusion

In conclusion, we believe the current Dutch employer’s copyright of Article 7 DCA does not violate EU law. It is likely that national legislation assigning rights to anyone other than the author does not constitute a transfer of rights and therefore does not require prior consent. Secondly, signing an employment agreement may be considered (implicit) prior consent. Lastly, Article 7 DCA creates the possibility to deviate from the default assignment of rights. The same applies for Articles 3.8(1) and 3.8(2) BCIP. However, in our view, Articles 8 DCA and 3.29 BCIP could be considered precluded by EU law as a result of the ONB decision, since these provisions concern a transfer of copyrights (without prior consent), and do not contain an explicit possibility to contractually deviate.

We however have to await further clarification by both the CJEU and national courts on the implications of the ONB decision on these provisions. Therefore, in the meantime, we advise all employers to review their existing employment agreements and include an appropriate IP transfer clause.