Cozzmoss: Damages for Publication of an Article on a Website
Cozzmoss is fighting internet infringements on behalf of a great
number of Dutch publishers. Whoever posts an article on his website
without the permission of the rightholder can count on receiving a
demand letter from Cozzmoss, in which payment is claimed. Not
everyone pays voluntarily. This has already led to a big number of
cases, and so far to six judgments (as far as published through 8
June 2011). The judgments were rendered by various courts and have
very different outcomes; it seems that the judges have not looked
at previous rulings from other courts. In the overview below, the
judgments are described.
The most interesting aspect is the calculation of the damage.
Cozzmoss departs from the ‘economic value’, which is calculated on
the basis of the rates publishers pay to freelancers of €0.36 to
€0.47 per word, while Cozzmoss claims a mark-up of two or even
three times that amount ‘because of loss of exclusivity and because
infringement should be discouraged’. On this point, the opinions of
the courts differ considerably. The multiplication by a factor of
two used by Cozzmoss has been rejected by the courts several times,
but has also been awarded several times. The Netherlands have no
system of punitive damages (not just compensation of damage but
also a penalty by way of punishment); it is exclusively the damage
suffered that must be compensated. The ground of the ‘economic
value’ adduced by Cozzmoss is often followed by the Subdistrict
Courts, which is remarkable, because when the publishers themselves
were sued by the freelancers for re-use without permission, they
were not willing to settle the bill on the basis of the freelance
rates paid earlier (Court of Utrecht, 26 March 2008, LJN:
BC7661).
Another interesting aspect is whether or not an order to pay the
full costs of the proceedings is awarded. Although Section 1019h of
the Dutch Code of Civil Procedure is based on the principle that in
the event of an infringement of intellectual property rights, the
party ruled against will be ordered to pay the full costs of the
proceedings of the party found for, the Subdistrict Courts do not
go along with this. Using various arguments, they arrive at a
division of procedural costs that differs from the division
pursuant to Section 1019h of the Dutch Code of Civil Procedure.
- Cozzmoss/Vermeule , Subdistrict
Court Arnhem, 10 December 2008. On his website
Weerspiegeling.nl (‘a somewhat obscure website’, in the words
of the Subdistrict Court), Vermeule published one article of
BN/De Stem during less than a month. Cozzmoss claimed a
principal amount of €1,400 in the proceedings and was awarded
€365. This was the lowest amount that Cozzmoss had offered as a
settlement earlier. Cozzmoss claimed the full costs of the
proceedings; more than €4,500. The Subdistrict Court took a
remarkable position. The Subdistrict Court stated its intention
to refer the case to the Court if the total claim would exceed
€5,000; Cozzmoss then limited its claim to that amount. To me,
it seems not right to count the costs of the proceedings in to
determine the limit of jurisdiction at the Subdistrict Court.
Later, the Subdistrict Court compensated the legal costs,
because both parties were partly found against, and therefore
each party had to bear its own costs.
- Cozzmoss/Volkstuindersvereniging ‘Zonder werken
niets’ , Subdistrict Court Haarlem, 18 November
2010. The allotment gardeners' association has a website
for its 135 members, and posted an article from the newspaper
Trouw about vegetable gardens on it. Cozzmoss claimed 2.5 times
the economic value, but the Subdistrict Court allowed this
claim up to the amount of that economic value – without
mark-up. The court held that the article had only been
accessible in a limited way and that the social interest of the
topic (allotment gardening) was rather small. The order to pay
the costs claimed by Cozzmoss was denied, considering the
limited duration and scope of the infringement, and the good
faith of the allotment gardeners' association.
- Cozzmoss/Bulthuis Uitzendbureau ,
Subdistrict Court Groningen, 8 December 2010. Bulthuis
Uitzendbureau posted one article on its website. This article
was made by Applinet. Cozzmoss laid claim to the economic value
of €230, multiplied by a factor of 2, because no permission had
been asked. The Subdistrict Court allowed this claim. The 100%
increase is justified, according to the Court, because
‘otherwise third parties would be free to buy permission only
afterwards by still paying the user fee to the copyright
holder’. Cozzmoss claimed full costs of proceedings of €1,150,
but ‘in view of the scope and complexity of the case,
reasonableness opposes the full allowance of the claimed order
to pay the costs’; €750 was awarded.
- Cozzmoss/El Tawheed, Subdistrict
Court Amsterdam, 3 February 2011. El Tawheed is a religious
organization. It posted several articles from De Volkskrant on
its website. Cozzmoss claimed the economic value calculated by
it, on the basis of €0.36 per word, and laid claim to twice
that amount for loss of exclusivity and because it wanted to
discourage El Tawheed from infringing copyrights. The
Subdistrict Court followed these arguments and allowed
Cozzmoss' claim, including the multiplication by a factor
of two. The reliance on freedom of the press and the right to
quote was denied. The claim to pay the full costs of the
proceedings was denied because Cozzmoss had not substantiated
those costs; instead, the costs of the proceedings were awarded
according to the court-approved scale of costs.
- Cozzmoss/Deeltijdtalent,
Subdistrict Court Alkmaar, 16 March 2011. Deeltijdtalent.nl is
the website of a recruitment and selection agency. It posted
two articles of De Volkskrant without prior permission.
Cozzmoss claimed the economic value on the basis of the
freelance rate of €0.36, increased by 100%. This freelance rate
makes clear, according to Cozzmoss, what the direct costs of De
Volkskrant are to have an article written. The Subdistrict
Court held that the damage De Volkskrant has suffered is
limited, and this did not justify compensation of twice the
economic value. It had neither been argued, nor had it become
evident that the articles had lost anything of their usability
or that damage had been suffered in any other way, the Court
concluded. The damage was established at the economic value,
without mark-up. Both parties were ordered to pay their own
costs, because the parties had both been ruled against and
found for.
-
Cozzmoss/bedrijfsorganisatieadviesbureau,
Court of Almelo, interlocutory judgment of 6 April 2011.
The defendant published a number of articles of Cobouw/SDU on
its website, stating the source. Cozzmoss claimed the economic
value on the basis of the freelance rate of €0.47 per word,
multiplied by a factor of two. The Court first assessed whether
the articles copied were indeed copyright-protected. They were
news flashes, limited mainly to a ‘bare’ representation of the
news, without any qualification or individual coloring. It is
not clear whether Cobouw/SDU has edited this news. The Court
ordered Cozzmoss to prove that the articles have been written
by employees of Cobouw/SDU and that they meet the
requirements for copyright protection. So this case is still to
be continued.