Enforcement of foreign (non EU) copyright judgments in The Netherlands
Category: Privacy law
Some clients believe that it is very hard or even impossible to enforce a foreign (non EU) judgment in The Netherlands, because there is no treaty between the two countries aimed at recognition and enforcement of such judgments (for instance between the United States and The Netherlands). Luckily this is not the case
Enforcement of copyright judgments in The Netherlands
From experience we know that there are many copyright holders who are looking to enforce their rights, cross border. We also know that The Netherlands is known for mild copyright laws, enabling the public to make a so-called “home copy”. This means that downloading copyright material for your own use is permitted (restrictions apply).
P2P usage for copyright material is not permitted, because then you’re not merely making a copy, but are actually distributing the material yourself by uploading it, which is the very sense of P2P networking). Strangely enough, one may even legitimately download from an illegal source.
As a result, a lot of copyright infringing materials are hosted (in many different forms) on Dutch servers, with Dutch Service Providers.
Luckily for copyright holders, there are options. Both in as well as outside the Dutch jurisdiction. Parties with a foreign awarding judgment, can have their judgment recognized and executed in The Netherlands without renewed proceedings on the merits.
There are 4 requirements that need to be met:
a) The foreign court should have been competent to judge the matter; on an internationally accepted ground;
b) The judgment should have been given after due process, including timely and proper calling the defendant in the proceedings;
c) The recognition and execution of the judgment should not be in conflict with the Dutch public order; and
d) The judgment should be final.
For instance, in case of copyright infringement (or in general in case of tort) (partly) committed in the foreign country, the foreign court can often hear the claim without much problem, even though the main actual business operation takes place in The Netherlands. This can be the case when a Dutch website is displaying copyright material and (e.g.) the website is (also) aimed at the United States.
It’s important to have the defendant properly summoned before the court. In order to avoid discussion on this point, it is advisable to meet both the foreign requirements, as well as the Dutch requirements of proper summoning. We can assist you in the coordination of process service with a Dutch bailiff. Should you be able to demonstrate that the defendant is properly summoned in all possible ways, the defense argument that due process was not observed will most likely fail.
The defense argument that access to an attorney was not possible, due to the high cost will also most probably fail. In case a party chooses to access the American market, this party has to accept the risk of getting involved in legal proceedings as a result of this. Cost may be high, but such costs are not unusual and furthermore not impossible to bear.
Defense arguments aimed at getting the court to decide that the foreign judgment was poorly motivated are not likely to succeed. In general (foreign) judgments will be sufficiently motivated. This can and will only be checked marginally by the Dutch court. Reference to articles from foreign laws and substantiation by documents to prove the claims will in most cases be sufficient.
Important is also that it doesn’t matter whether the foreign judgment was delivered in default or not. Even default judgments, when all formalities have been observed, can be recognized and enforced.
The Dutch court will decide that a foreign judgment is in conflict with the Dutch public order in exceptional circumstances only. The mere fact that a foreign court decided differently than a Dutch court would have is not sufficient to assume conflict with public order.
Some jurisdictions offer the possibility to claim damages and profits from copyright infringers fairly easy. For instance in the United States the court can award statutory damages, ranging from US$ 750 to US$ 30,000 per work infringed upon, as the court considers just. Decisions based on such damages, unknown in this form in Dutch jurisdiction, are also recognized.
Generally this means that all time limits for possible appeal(s) should have expired. In case all requirements are met, the Dutch court will deliver a judgment without dealing with the matter on the merits and this judgment may be enforced in The Netherlands.