During the last couple of years the Netherlands Supreme Court has addressed the existence and scope of the misappropriation doctrine under Netherlands law in a number of decisions . The misappropriation doctrine concerns whether, and to what extent, a protection, which is similar to the protection as provided by statutory intellectual property rights, can be granted under the laws of unfair competition with regard to immaterial objects, which are not the subject matter of intellectual property statutes. In effect, this subject concerns the issue whether courts can establish common law intellectual property rights.
The importance of this subject is increasing because of the rapid development of modern technology, which is accompanied by various new immaterial objects and new possibilities of exploiting them, making their appearance in the legal arena. Since the legislature is, for various reasons, not capable of keeping pace with these developments, it will be very much up to the courts to meet the demands of the interested parties and to find a just and reasonable balance between these demands and the public interests concerned.
In the Netherlands the works of, for instance, performing artists, producers of phonograms or movies, broadcasting organizations, news agencies, organizers of concerts or sport events and operators of pay-tv networks are not yet protected by statutory intellectual property rights . The significance of common law protection of such achievements is therefore given, since it is obvious that some form of protection is required against the unauthorized commercial exploitation of these efforts by third parties, taking into consideration the substantial investments and economic interests concerned.
2. DECCA v. HOLLAND NAUTIC
Landmark decision with regard to the misappropriation doctrine is the judgement of the Netherlands Supreme Court of 27 June 1986 in the case of Decca v. Holland Nautic . In a lengthy and detailed opinion the Supreme Court provided some general comments on the possibilities of granting common law intellectual property rights to objects, which are outside the scope of intellectual property statutes like the Patent or Copyright Act. For a proper understanding of the decision of the Court, the facts of that case are of relevance.
From 1946 Decca has established and maintains the Decca Navigation System, consisting of a network of radio transmitters along the coast of Europe, all the way from the North Cape to Gibraltar. Each transmitter broadcasts a specific signal in code: a "beep". With the help of a computer program a ship receiving two or more of these signals is able to determine its exact position at sea with great accuracy. A number of these transmitters are supported by national governments, but some are still owned and operated by Decca. The system as such is not protected by patents. Decca is in the business of renting receivers for the use of the Decca Navigation System. Holland Nautic is selling its receivers, which can only be used in conjunction with the Decca system. Decca charges a yearly rent of Dfl. 10,000.-, while Holland Nautic is selling its equipment for that same amount. It is obvious that Holland Nautic takes advantage of the substantial investments and efforts of Decca and the national governments to establish and maintain the Decca Navigation System, and could not be doing business without them.
In its judgement of 19 November 1984, the Court of Appeals at Arnhem reversed the decision of the President of the District Court at Almelo and enjoined Holland Nautic from selling its receivers without paying a reasonable compensation to Decca. The Court of Appeals was of the opinion that the fact that Holland Nautic takes advantage of the existence of the Decca Navigation System without contributing to the costs required for its exploitation constitutes an act of unfair competition. The Court also took into consideration that Holland Nautic could charge a substantial lower price for its equipment, because it did not contribute to these costs for the maintaining of the Decca system and that it is relatively easy for Holland Nautic to include such costs in its sales price.
The Supreme Court, however, reversed the decision of the Court of Appeals and denied the relief requested by Decca. The Supreme Court argued that the mere circumstance that Holland Nautic takes advantage of the existence of the Decca Navigation System as well as the fact that Decca will be confronted with damages because of Holland Nautic's competition is not sufficient to constitute an act of unfair competition . The Supreme Court indicated that decisive has to be whether the public interests concerned together with the relevant circumstances of the case justify the decision that such activities nevertheless constitute a tortious act. The Court also reasoned that, if an affirmative answer to that question will imply that a protection will be granted, which does not substantially differ from the protection provided by an intellectual property right, restraint is required. The Supreme Court further ruled that if a statutory protection is absent "it is at least required that advantage is taken from an effort of such a nature that it "can be put on one line" with objects for which an intellectual property right is justified". If such is not the case, special circumstances will be required to justify a restraining order.
Against this background the Supreme Court denied the relief requested by Decca. The Court was of the opinion that the efforts of Decca were not of such a nature that they can be put "on one line" with objects for which an intellectual property right is justified. The Court, however, did not provide any arguments for this decision. It seems of relevance in this regard that the Court was of the opinion that the broadcasted signals of the Decca system can be freely used by the public and that the knowledge required for manufacturing the receivers is in the public domain. One probably also has to take into consideration that the signals as such - mere beep-tones - do not contain any useful information, and can be compared with the beams of a lighthouse in this regard. The signals only become of value if two or more signals are combined in conjunction with a particular computer program.
In addition the Supreme Court reasoned that the various specific circumstances of the case were not particular enough to justify a restraining order. The mere circumstance that Decca had committed resources, ingenuity and effort to the system is not a factor which justified another judgement, according to the Supreme Court, also taking into consideration that Decca had already had held a monopoly for over 35 years.
3. CRITERIA FOR APPLICATION
It is of great significance that in the Decca-decision the Supreme Court in so many words indicated that there is room for a misappropriation doctrine under Netherlands law. The Supreme Court, however, restricted itself to providing some general comments only, which do not provide much guidance and do not go into much detail. First, the object of a common law intellectual property right has to be at least of such a nature that it can be put "on one line" objects for which an intellectual property right is in place. Second, restraint is required. The fact that the Court limited itself to these general remarks seems to justify the conclusion that the Court has not yet determined what its exact strategy with regard to this subject will be and that it wants to be free to further exploit the territory on a case by case basis. The result of this approach is, however, that it is still unclear which particular immaterial objects might be in a position to benefit from common law intellectual property rights as well as what the possible scope of protection of any such rights should be.
It seems to me that the conclusion from the Decca-judgement should be that it is possible for any kind of immaterial object, which is the result of expenditure, labour or skill, to benefit from a common law intellectual property right. Whether or not such a protection should indeed be granted for a particular effort and what the exact scope of any such protection might be, is still for the courts to decide on a case by case basis. During that process the courts have to apply restraint, as the Supreme Court emphasised. It seems that such restraint is in particular required when protection is asked for efforts which are only vaguely corresponding with the subject matter of an intellectual property statute. Another reason for applying restraint might be that protection is requested with regard to a form of exploitation which is not similar to the protection as provided by a corresponding intellectual property statute . If, however, a substantial analogy exists with regard to the object for which protection is claimed - like for instance the works covered by neighboring rights for performers or producers of phonograms - as well as the manner in which such work is exploited, there does not seem to be much that should stand in the way of granting protection.
It should be noted that the true significance of the Decca-judgement is that it provides general guidelines for the application of a misappropriation doctrine. The granting of common law intellectual property rights as such, is not a new phenomenon under Netherlands law. Before the Decca-decision, common law intellectual property rights have already been granted by the Supreme Court for specific objects as portraits of popular figures and "all writings". But these decisions dealt with the subjects concerned in a restricted manner so that the impact thereof seemed to be limited to the specific objects concerned. In the Decca-judgement, the Supreme Court made a first effort of addressing this topic in a more universal manner.
4.1 "All writings"
In a series of judgments from 1937 through 1965 the Supreme Court has ruled that "all writings" , even if they lack originality - like telephone directories or the compilation of the TV and radio program listings - are protected by a copyright under the Netherlands Copyright Act. These decisions were based on the text of article 10 (1) of the Netherlands Copyright Act, which contains a list of examples of works that can be protected by copyright. In section (1) reference is made of "books, brochures, news magazines, periodicals and all other writings". The history of the Act shows that the phrase "all other writings" was used by the legislature in 1912 in order to continue the protection that had previously been granted by the Supreme Court in its decisions of 1892 and 1895 under the previous Copyright Act of 1881, in which the Supreme Court had ruled that all printed or written matter, whether it was original or not, was protected by copyright. This intention of the legislature of 1912 has been criticised unanimously by legal scholars. Nevertheless the Supreme Court ruled in the above referred to decisions that such non-original written matter is indeed protected under the present Copyright Act of 1912. In its Televizier-decision of 1965, however, the Supreme Court argued that since these non-original writings are of a different nature than original works, such writings are not entitled to benefit automatically from all the provisions of the Copyright Act. These provisions are only applicable to such non-original writings to the extent that such is justified in view of their specific nature, according to the Supreme Court. The exact scope of this particular copyright for non-original writings has not been further addressed by the Supreme Court thereafter, and still has to be determined by the courts on a case by case basis. In these decisions the Supreme Court in effect created a special - sui generis - copyright protection, albeit that officially such was done within framework of the Copyright Act. Since, however, this particular copyright is not equal to the protection granted by the Copyright Act for original works and the scope of this protection has to be determined by further case law, the Supreme Court in effect introduced a common law copyright for non-original writings.
Another example of the misappropriation doctrine being applied by the courts is the protection granted with respect to the commercial exploitation of one's portrait. Article 21 of the Netherlands Copyright Act provides that a person can prohibit the publication of his likeness if he has a "reasonable interest" related thereto. This provision was drafted in 1912 in order to protect the privacy of persons who were portrayed by authors without having given their consent. A "reasonable interest" therefore referred to matters of privacy.Commencing with a decision of the Court of Appeals at The Hague , the courts have taken the position that a commercial interest also constitutes a "reasonable interest" and have issued retraining orders on behalf of, for instance, professional singers and athletes. This case law of the lower courts was confirmed by the Supreme Court in its judgement of 19 January 1979, in the case of 't Schaep met de Vijf Pooten. In that judgement the Supreme Court ruled that professional performing artists can prohibit the commercial use of their portrait . Although article 21 of the Copyright Act functioned as the official vehicle for granting such exclusive rights regarding the use of one's portrait, the courts have in effect granted a common law copyright pertaining to the exploitation of one's likeness. The exact scope of this common law intellectual property right is (still) unclear to a relatively large extent, in the absence of further case law in this regard. In addition it should be noted that this protection is not just a specific form of copyright as is the case with the protection granted to non-original writings. Article 21 of Copyright Act is only of relevance since it provided the first bases for this protection. Since this article does not contain any copyright provision, but only relates to the position of a portrayed person vis-a-vis the proprietor of a copyright. Therefore, the protection granted with respect to the commercial exploitation of one's portrait is indeed a common law intellectual property right.
4.3 Significance of the Decca-judgement
The significance of the Decca-decision is therefore not so much that the courts can grant common law intellectual property rights, since they have been doing so for already quite some time with regard to "all writings" and "portraits". The real value of the Decca-decision is that it indicates that it is possible to grant common law intellectual property rights in general, so that various issues, which are of relevance in this respect, can be dealt with in a universal manner. In addition the decision seems to indicate that the Supreme Court might in the near future be willing to further develop a misappropriation doctrine.
In the Decca-decision the Supreme Court ruled that in order to qualify for a common law intellectual property right the object concerned has - as a minimum - to be of such a nature that it can be put on one line with objects for which an intellectual property right is justified. Therefore, one has to determine what the common denominator of the subject matter of the various intellectual property statutes is and what the justification is for their existence.
5.1 Expenditure, labour and/or skill
The one thing that the various statutory intellectual property rights have in common is that their rationale is to protect the "expenditure, labour and skill" that is usually required for the creation or production of their subject matter, such a an invention, an original work of art, an industrial design, a trademark, a plant variety or a mask work of a semiconductor chip product. One should also take into consideration that expenditure, labour or skill is usually not only required for the creation of the effort concerned, but that in most cases investments in manufacturing facilities will be necessary before the object can be taken into production. In addition substantial marketing costs will as a general rule be required before a market for a new product can be established. It are basically these costs that an intellectual property right tries to safeguard by providing a means for securing the possibility of a return on these investments. Therefore the subject matter of a misappropriation doctrine will equally have to qualify as an immaterial object, which is the result of expenditure, labour or skill.
5.2 Public Interest
It is one of the purposes of intellectual property rights to enable the recovery of the above referred to costs so that it may be worthwhile to take the risks related to the research and development or the production of particular immaterial goods. In this respect, intellectual property rights function to some extent as instruments of economic policies concerning the distribution and accumulation of knowledge and culture.
Not only is the public interest one of the foundations for intellectual property rights, it also sets the limits for their scope. Education and progress can only prosper if ideas, knowledge and experience can be communicated and passed on from generation to generation. It is for that reason that as a general rule knowledge as such cannot be the subject matter of exclusive rights. The only exception to this rule is made with respect to the exploitation of inventions, which meet the requirements for a patent.
Another pillar of western societies is that free competition is deemed to be a sound instrument for the stimulation of progress. Therefore principles of freedom of trade and business and the right to compete play a distinct role in unfair competition law. Such was also emphasised by the Supreme Court in the Decca- judgement. In this regard, one has to put exclusive rights into perspective; they are an exception to the rule. And for the same reason they only provide a protection for a limited period of time after the expiration of which their subject matter is free to be used by others.
In view of the above principles, one has to determine which particular immaterial goods might qualify for a common law intellectual property right. In addition these principles are of relevance with respect to the scope of the protection that can be granted by such rights.
For determining wether or not a party is entitled "to reap where he has not sown", the principle of unjust enrichment seems to play a crucial role. Decisive will have to be whether or not a particular enrichment is justified taking into consideration the above principles. In this respect, the following categories of appropriating a competitor's efforts can be distinguished.
6. CATEGORIES OF APPROPRIATION
6.1 Merely Taking Advantage
As a general rule, the merely taking advantage of a competitor's effort is not an act of unfair competition. A party that only profits from a market, which has been created by the efforts of a third party, does act tortiously, since that party will also have to make substantial investments related to the manufacturing of the product. It is for that reason that Holland Nautic is entitled to sell its receivers just as well as one may manufacture spare parts for a competitor's machine.
6.2 Direct Exploitation
Directly exploiting an other party's efforts does generally constitute an act of unfair competition. Direct exploitation concerns the situation in which one is not recreating or rebuilding the work of a competitor but is mechanically duplicating the work of another like, for instance, sound or video recordings, movies or computer data. In such a case, there is a disproportional imbalance between the costs of the party that duplicates and the costs of the maker of the original recording or actual collector of the data. In addition it is of relevance that the party that duplicates could never have been doing business at all without the original having been made. Therefore, as general rule directly exploiting a competitor's efforts constitutes a tortious act because as a general rule the enrichment must be considered to be unjust. The fact such practices are usually referred to as piracy speaks for itself in this respect.
6.3 Indirect Exploitation
A third category that can be distinguished is indirectly exploiting another party's efforts. This concerns the situation in which one is not mechanically duplicating, but is only exploiting a crucial element thereof. For instance in case of information with a news value, that has been collected by another party, the publishing thereof by a competitor prior to or simultaneously with the publication by the original collector of that news is a form of indirect exploitation. The content of the news as such is not protected by a copyright, so that the tort cannot be in the publication as such. The fact, however, that one publishes the information at the moment that it still has a specific news value for the original collector may constitute an act of unfair competition.
The case that was decided by the US Supreme Court in International News Service v. Associated Press concerned a clear example of indirect exploitation . It seems that as a general rule indirectly exploiting another party's achievement constitutes an act of unfair competition.
In Decca v. Holland Nautic the Supreme Court emphasised that restraint is required if courts grant a protection, which is similar to the protection granted by statutory intellectual property rights. The importance of this call for restraint should not be underestimated.
The various intellectual property statutes protect a mixed collection of immaterial objects, varying from a new plant variety to the original mask work of a semiconductor chip product, and from a original work of art to an invention. These statutes also grant a very specific protection, which is determined by the particular nature of the effort concerned. In addition these statutes provide a balanced and sophisticated system of exceptions upon the exclusive rights concerned. The duration of the protection granted also differs substantially from statute to statute.
Such a 'fine tuned' and differentiated system is an absolute requirement for the maintaining of a just and reasonable balance between the private interests of the individual proprietors, on the one side, and the public interests, on the other side.
It cannot be denied that courts are ill-equipped to give the private and public interests concerned their fair and equal share in this respect, when they are required to do justice in a particular case brought before them by a particular party . It also does not seem realistic to set one's hopes too high with regard to what courts can in effect accomplish in their capacity of "substitute legislatures".
On the other hand, the importance of the lack of legislative guidance should not be dramatized. Courts are, for instance, much better equipped than the legislature to take into consideration all the particular circumstances of a particular case. Courts are also in a position to "scout the terrain" step by step and to make the law on a case by case basis, without being required to determine the law with respect to a specific issue "once and for all" .
It should also be noted, however, that both the determining of which objects are eligible for protection as well as fixing the scope of the protection to be granted is not always an exercise, that merely requires legal skills. This process may contain a few knots, which should be cut in the political arena. Such was illustrated recently by what happened with respect to the draft of a Statute on Utility Models. This draft will probably not make it through Parliament because of a lobby of the domestic industry, which fears that the positive effects of such a protection for foreign industry might outweigh the benefits for the national industry .
It seems that the call for restraint in the Decca-decision has to be put in the light of the above considerations. This means that a judge should only grant a common law intellectual property right if the effort concerned has distinct similarities with the subject matter of an intellectual property statute. If the analogy is weak, a court will have to decide relatively soon not to grant the relief requested. The same goes for the kind of protection requested. If the similarities with the protection provided by a statute concerning an object, which is analogous to the effort at issue, are substantial, courts will be more free to grant the relief requested. If, however, a well founded defence is raised, which corresponds with an exception that has been acknowledged by the legislature with respect to an analogous object, a court should be more inclined to refrain from granting protection.
One should, however, always realise that the issue of restraint is completely different from the question of which immaterial objects may qualify for being of such a nature that they can be put "on one line" with the subject matter of intellectual property statutes, which is the minimum requirement that has to be met before a particular object can be subject matter of a common law intellectual property right. The latter only requires an analysis of the nature of the effort in dispute and the possible legal basis for the granting or the denying of an intellectual property right. This is a task which can be easily performed behind one's desk. It is a different matter, however, whether or not protection should be denied in a particular case because of the restraint that has to be applied by the courts.
It should also be borne in mind that if it is decided that a particular effort qualifies as an "one line achievement", such does not necessarily imply that protection should indeed be granted. On the contrary, one still has to overcome quite a number of hurdles, each of which might be sufficient to have the protection denied.
8. CASE LAW
8.1 KNVB v. NOS
In these proceedings the Netherlands National Football Association (KNVB) and various football teams claimed a common law intellectual property right to football games so as to ban the broadcasting by radio or television of short live-reports of a match. The parties agreed that the national public broadcasting organization (NOS) was not entitled to broadcast an entire match on television. The dispute was limited to the right to broadcast small live reports on the radio or to broadcast only the highlights on television.
Both parties in effect agreed that a football match constitutes a "one line achievement" as well as that KNVB can prohibit the direct exploitation by means of the recording and broadcasting of an entire match. The dispute was therefore limited to a form of indirect exploitation: broadcasting short live-reports via the radio while the match is being played.
Both the District Court and the Court of Appeals at Amsterdam held that the KNVB and the teams could indeed object to the broadcasting of these live-reports. The Supreme Court also granted the relief requested but reversed the grounds as provided by the Court of Appeals at Amsterdam .
The Supreme Court was of the opinion that even though KNVB and NOS were not real competitors in the market place, the principles as set forth in the Decca-decision were applicable. The Supreme Court also ruled that these principles would apply in case amateur football instead of professional football would have been at stake.
In the light of Decca, it therefore had to be determined whether there are reasons to grant a protection similar to that provided by an intellectual property statute. The Supreme Court bluntly stated that there was no such reason so that the minimum requirement of the Decca-case was not met, without providing any arguments in this regard. In view of the fact that the parties themselves as well as the District Court and the Court of Appeals were of the opinion that a football match was entitled to such a protection and the dispute was therefore limited to the issue of fair use in case of indirect exploitation, this decision of the Supreme Court came as a real surprise.
The Supreme Court nevertheless granted the relief requested but not by applying a misappropriation doctrine. It ruled that the football teams are entitled to prohibit the making of television or radio broadcasts by people who enter and use the stadium, because of their right to control the use of the stadium as such.
This decision of the Supreme Court is hard to understand. It seems to me that it cannot be denied that the games organized by the football teams and the KNVB qualify as achievements which can be put "on one line" with works protected by intellectual property statutes, since they are clearly the result of expenditure, labour and skill in the same manner as the works of, for instance, the producers of phonograms or broadcasting organizations, which are protected by neighboring rights under the Conventions of Rome and Geneva . In view of this close similarity, it would certainly have been appreciated if the Supreme Court would have revealed the arguments which made it decide otherwise . It seems to me that the Supreme Court should have focussed on the issue of restraint and the analogy with fair use exceptions as provided by the Copyright Act or by the above Conventions, instead of the "one line achievement" issue.
8.2 State v. Den Ouden
The Governmental Printer is responsible for the printing and publishing of all statutes in the State Journal, which is a requirement for their coming into effect. In february of 1983 the Governmental Printer published a commercial edition of the Regulations for Inland Navigation using the typesetting that had been made and used for the official publication in the State Journal. The costs of producing the typesetting were Dfl. 60,000 and the selling price was Dfl. 19.50. It is an notable detail that the Regulations require that a copy thereof is present on board of every ship. Within one month after the publication of the commercial edition of the Regulations by the Governmental Printer, Den Ouden also published an edition of the Regulations using a photocopy of the typesetting of the Governmental Printer. Den Ouden's selling price was a competitive Dfl 7.90 per copy, while his costs of production had not exceeded Dfl. 8,000.
In this case of direct exploitation the President of the District Court at Rotterdam granted the injunctive relief requested by the State, which decision was reversed by the Court of Appeals at The Hague .
The Supreme Court also denied the relief requested by the State . Instead of using the classical criteria for slavish imitation, as the Court of Appeals had done, the Supreme Court expressly referred to the Decca-judgement and emphasised that restraint had to be applied. Further the Court referred to Article 11 of the Copyright Act of 1912, which provides that the text of statutes is excluded form copyright protection. It argued that the rationale behind this provision is that statutes and regulations should be in the public domain. The Court also addressed a number of special circumstances, which the State had put forward, such as the fact that both editions were completely identical and the substantial lower price that Den Ouden charged. The Supreme Court considered these circumstances to be of minor importance, so that they did not justify the granting of the protection requested by the State.
It should be noted that the Supreme Court focussed solely on the issue of restraint and refrained from expressing an opinion with regard to whether the effort of the typesetting of the text of the statute is a "one-line-achievement". Such is the more remarkable, since the latter was the (sole) issue the Court had addressed in the KNVB-case. Whether this is to indicate that the Supreme Court was of the opinion that the minimum requirement of a "one-line-achievement" being present, was met is not clear from the opinion. It seems to me that the typesetting of a text can qualify as a "one-line-achievement", taking into consideration the substantial expenditures involved. In this respect there seems to be a clear analogy with the rationale behind the protection granted to "all writings", whether original or not.
8.3 Elvis Presley
The issue of an effort qualifying as a "one-line-achievement" was explicitly addressed by the Supreme Court in its judgement of 24 February 1989 in a case concerning the rights related to Elvis Presley's work as a performer. In these proceedings BMG, who had acquired the rights related to Presley's efforts as a performer, sought injunctive relief against the production and distribution of recordings of Presley that were manufactured without their consent; a case of direct exploitation .
The President of the District Court at Utrecht had enjoined the defendant from selling these recordings, but this decision was reversed by the Court of Appeals at Amsterdam. Although the Court of Appeals was of the opinion that the work of Presley as a performer qualified as a "one-line-achievement", it was of the opinion that there were no particular circumstances which justified the granting of a protection, applying the required restraint in a very strict manner indeed.
The Supreme Court took the position that the efforts of Presley qualified for the granting of a protection similar to that granted by statutory intellectual property rights - in particular copyright - and reversed the decision of the Court of Appeals, granting the injunctive relief requested by the plaintiffs. It seems that the fact that the Netherlands is at present in the process of drafting legislation to establish neighboring rights for performing artists, producers of phonograms and broadcasting organizations, pursuant to the obligations under the Conventions of Rome and Geneva, was of crucial importance to the Supreme Court. The Court addressed into relatively great detail the scope of the protection and held, among others, that such rights are still existent for some time after the death of the performer. In view of the clear analogy with copyright and given the body of law as provided by the Conventions, the Supreme Court obviously felt that there was no need to apply restraint.
The present state of affairs concerning the misappropriation doctrine in the Netherlands is unclear. In the Decca-decision the Supreme Court indicated that there is room for a misappropriation doctrine. The minimum requirement that has to be met is that the effort concerned can be put on one line with achievements for which the granting of an intellectual property right is justified. It seems that such makes it possible - as a general rule - for the results of expenditure, labour and/or skill to be protected by common law intellectual property rights.
A note of discord in this respect is the decision of the Supreme Court in the KNVB-case. Although the efforts of the National Football Association and the teams seem to be analogous to the efforts of, for instance, producers of phonograms or broadcasting organizations, the Supreme Court held that these efforts did not qualify as a "one-line-achievement".
The significance of the KNVB-decision, however, seems limited. In its judgement in State v. Den Ouden the Supreme Court circumvented the "one-line-achievement" issue and denied the relief requested based on the analogy with the provision of the Copyright Act, which denies copyright protection to statutes. It seems that this is a good example of applying the restraint mentioned in the Decca-judgement.
In the Elvis Presley-decision the Supreme Court acknowledged that the work of a performer constitutes a "one-line-achievement". This decision shows that if there is a clear body of law that can be applied by analogy - such as copyright or the neighboring rights provided for in the Conventions of Rome and Geneva - there is no need to apply restraint.
It seems that at present it will be possible to grant common law intellectual property rights to the result of expenditure, labour and/or skill in cases of direct exploitation. Further review of the topic of misappropriation should probably focus for the most part on the issue of restraint, for which task the decisions in State v. Den Ouden and Elvis Presley seem to provide proper guidance.
The case law of the lower courts shows that common law intellectual property protection has already been granted to the works of producers of phonograms , operators of pay-tv networks , press agencies and the broadcasting of news . This seems to prove that the courts are willing to take this matter up and to further develope the misappropriation doctrine in the years to come.
Amsterdam, March 1990