Can the content of conversations between a famous criminal and police agents taking place in the backseat of a car be protected by copyright? This question, addressed to the Dutch courts in 2006, resurfaced in recent weeks after the decision of the Amsterdam Court of Appeals in the case Endstra Tapes.
Facts
The origin of this case is related to police recordings of several conversations between Dutch police agents and the real estate investor Willem Endstra, a man suspected of organizing various crimes in the Netherlands, including money laundering. These informal and freely-given conversations revealed details about Endstra’s connections with other prominent criminals and their activities. After the murder of Endstra in May 2004, the transcripts of these conversations were published in 2006 in the book “The Endstra-Tapes” without any consent of Endstra’s heirs. These heirs later filed a lawsuit against the publisher based on copyright infringement, arguing that expression of knowledge and opinions of Endstra – even in an informal dialogue – should be protected by copyright as a literary work.
Decision by Dutch Supreme Court
In February 2007, the Amsterdam Court of Appeals ruled that backseat conversations per se can not be protected by Dutch copyright law. After an appeal by Endstra’s heirs, however, the Dutch Supreme Court decided on May 2008 that the copyright protection for such kind of conversation is not absolutely excluded. The author may enjoy protection if his/her work fulfills two criteria, namely that (i) “it must possess its own original character”, so that it is not copied from another work, and (ii) “it is a result of the human creativity and of creative choices, and thus is a product of the human mind”, so that the protection does not include cases in which the form of expression is banal or trivial. After this decision, the Supreme Court referred the case back to the Amsterdam Court of Appeals, which should use the new criteria in judging the case.
New Decision by Amsterdam Court of Appeals
On July 16th, 2013, the Amsterdam Court of Appeals – based on the criteria set out by the Dutch Supreme Court – rendered a new decision rejecting copyright protection of the conversations. According to the Court, Endstra’s transcribed sentences are “unfinished, badly formulated and downright crooked” to the point that they are so difficult to understand that their final design is banal and does not give the impression that the work is a result of an intellectual creation. Unlike oral presentations, diaries, letters and improvisations, which have more complex designs in their structures, ordinary conversations, which in general have a poor syntax, are usually characterized by their banal aspects.
As a consequence of this decision, Endstra’s heirs can not impede the publisher to keep commercializing the book on the market without their consent and do not have any right to an equitable compensation of the commercial use of the content of the conversations.
Evaluation
The main criticism of the decision is related to the criteria used by the Amsterdam Court of Appeals to determine the banality of Endstra’s conversations. The Court considered completeness of the sentences, grammatical correction, ease of understanding and coherence of communication as complexity elements of the creative work, which are conditio sine qua non for copyright protection. The requirements of a coherent and “high-level” creation, however, are provided neither in international copyright agreements (such as the TRIPS Agreement and the Berne Convention for Protection of Literary and Artistic Works), nor in the decision by the Dutch Supreme Court. In fact, the identification of individual creativity applied to a specific work is not related to the technical precision of its expression, but to the development and expansion of individual and intellectual characteristics, thoughts and feelings expressed by the person.
For purposes of this article, it is not possible to affirm that the backseat conversations of Willem Endstra resulted in a creative and individual expression that is copyright protected. Such conclusion would only be possible after a detailed analysis of the published book and the quotes taken from the dialogue. It is possible that these dialogues contained developed thoughts, opinions, and feelings expressed by the author. In such a case, even if an artistic and literary purpose was not present at the time of the expression, the final result of the conversations could possibly be considered as a copyright protected work.
Pedro Henrique Dias Batista is an IPilogue Editor and a PhD student at Ludwig Maximilian University of Munich.
