Joop Schafthuizen, the life partner of the Dutch author Gerard Reve who died in 2006, is – as his sole heir – the holder of the copyrights to the entire oeuvre of Reve. In brief, this means that Schafthuizen has the exclusive rights to make Reve’s works accessible to the public and to reproduce these works.
In 2003 the biographer Nop Maas received a grant to write a biography in three volumes about Reve’s life. The first volume covers the period 1923-1962. The second volume concerns the period 1962-1975. For these two volumes, Schafthuizen gave permission to use quotes from unpublished texts from said periods in the biography, and to publish the biography afterwards.
Volume three of the biography covers the period 1975-2006, which is the period when Schafthuizen was Reve’s partner. In October 2010 Schafthuizen received a typescript (a kind of manuscript) from Maas for this third volume. Later that month, Schafthuizen sent Maas a letter containing the following comments:
- All that has been underlined, scratched out or crossed out in Black or Blue pen concerning figures, names or texts, may not be used or printed in the book to be published.
- All that has been underlined, scratched out or crossed out in Yellow pen concerning figures, names or texts, I wish to change or explain if you so wish. If not, these will revert to the above rule, see under 1, that they may not be used or printed.
Next, Schafthuizen and Maas had a series of discussions about which quotes were and which were not allowed to be included in the biography. Eventually, the parties seemed to have reached agreement about the final text; a transcription of a telephone call recorded by Maas proves that Schafthuizen said the following:
“Yes, now that’s great, isn’t it, man. Well, I am very happy that you, that you, I can imagine there are many things of which you say, I would have like that to be in it as well, but I, erm, I am very glad that you and also [director], you know, do have respect for my situation, simply that I, erm, just emotionally too, cannot do it, you know. So that I really… and I tell you, I have read everything as well as possible, erm, I certainly didn’t touch many things that I would rather not see in it, of course, because they are simply like that. And I think there, and yes, also belong in the book, so as far as that is concerned, erm, I am very glad that we have had agreement with each other after all, so that, erm, those things will simply not be written in it.”
In spite of this, Maas still requested Schafthuizen’s permission once again later on:
“As announced, I hereby send you already (…), the proof of volume 3 (…). As far as the proofs are concerned: as the person bearing end responsibility for the production (…) has done his utmost to ensure that nothing is in it anymore of the things you agreed with [the biographer] to delete.(…) After you have also ascertained this yourself, please give me your permission to publish quotes unknown until now also in volume 3, and I look forward to receiving a copy signed by you of the agreement I have sent you for that purpose. If everything is all right, you will be able to tell from the proof that I have met all your conditions for that permission to the best of my ability.”
However, this permission from Schafthuizen did not come. Maas then informed Schafthuizen of the following:
“In a telephone call of 29 October we discussed these passages highlighted in yellow, and reached agreement about them. You stated that you were happy that we had managed to sort things out ‘in mutual respect’. Next, the publisher sent you a new printout of the text to check, showing both the changes demanded by you and the changes we had discussed. After you had studied this printout, you still notified the publisher of some deletions, which you had missed the first time. These wishes too were accepted. You then said to me that the third volume was now ready to go to the compositor. You cannot unilaterally go back on your given permission to publish the third volume in this form. Given the facts described above, I conclude that an agreement exists between us, which gives me the right to offer the third volume of the book – in the version that has been changed at your instigation – for publication, and that the publisher has the right to publish it.”
After this, Schafthuizen claimed a ban on the publication by Maas and the publisher in preliminary relief proceedings, on grounds of (1) the absence of the permission required, and (2) intrusion on privacy. The Court of Amsterdam recently gave a ruling (in Dutch) in those preliminary relief proceedings.
The Court considered as follows:
“It cannot be derived for the present from the mere fact that Schafthuizen has stipulated the right to inspect volume 3 that by doing so, Schafthuizen has already given permission to use these quotes in volume 3. After all, volume 3 was not yet ready, and Schafthuizen was therefore not yet familiar with the contents of it. In addition, the requests made afterwards by [the publisher] to Schafthuizen to grant his written permission for the use of the quotes in volume 3, and the agreements presented to Schafthuizen by [the publisher] in connection therewith also show that [the publisher] did not understand the agreement of 18 December 2009 as such.”
“In light of the talks Schafthuizen and Maas had about the amendment of the text highlighted in yellow by Schafthuizen, and the promises made by Maas in that context, the sentence “now it should go to the compositor” is insufficiently clear to allow the unambiguous permission of Schafthuizen for publication to be derived from it, in deviation of the meticulousness Schafthuizen had exercised until then in respect of the permission to be granted. The requests made by [the publisher] to Schafthuizen afterwards still, asking him to grant written permission for the publication, prove that [the publisher] too did initially not take this communication by Schafthuizen as the final permission (…)”
All in all, the Court in preliminary relief proceedings considered it implausible that Schafthuizen has given permission to use the quotes of Reve from unpublished work in volume 3. For this reason, the Court considered it unnecessary to discuss the question as to whether his privacy had been intruded. The Court imposed a ban on the disclosure of the challenged work and the quotes, on pain of a penalty of €50,000 per violation. Furthermore, Maas and the publisher were ordered to pay the full legal costs of Schafthuizen (in copyright cases, this is possible).
In my opinion, Maas seems to have burnt his fingers by asking Schafthuizen’s permission a second time (which, incidentally, is not incomprehensible), although the parties seemed to agree on the permission for the publication (see the transcriptions in the judgment). Had he not done this, this issue might well have turned out differently. Another striking aspect is that the Court has not at all tested the matter against the freedom of speech set out in Article 10 of the ECHR. I refer to the case of Tros/Pretium (in Dutch), where the failure to test against Article 10 of the ECHR led to a legal error. The question at issue here is whether permission is really required for the publication, since it concerns quotes from unpublished work of one of the greatest writers the Netherlands has ever known. Does the interest of making these quotes accessible to the public not outweigh the privacy interest and the copyright of Schafthuizen? Concerning the latter, a recent example of a case in which it was confirmed that intellectual property rights must in some cases give way to the freedom of speech is the Plesner/Louis Vuitton (in Dutch) case.
What remains is the right to quote. Although a successful reliance on the right to quote requires that works must be ‘legitimately made public’, and that in this case it concerns quotes from works not published yet, I do not think a reliance on the right to quote does not stand a chance from the start. These works can actually be inspected at the Museum of Literature.
Therefore, I think that in this case appeal proceedings may certainly not be excluded, nor will they be prospectless.