Judge: It is not allowed to distribute homemade subtitles without permission
The judge has ruled that creating and distributing self-made subtitles cannot be regarded as an independent work and that permission is therefore required from the owner of the relevant series or film.
The lawsuit was filed in 2016 by the Let Subtitles Free Foundation. In the case against Stichting Brein, the subtitlers wanted a statement from the judge that self-made subtitles must be legally regarded as independent works, which are separate from the copyright-protected dialogues from the film or series in question. In that case, no permission would be needed from the copyright holders of the movie or series to create and distribute the subtitles.
The judge now states that this argument does not hold. According to the court, self-made subtitles may indeed be an independent work, but that does not mean that for that reason permission from the maker of the film title does not have to be requested for the production and publication of subtitles. The dialogues from films and series are protected by copyright. Subtitles can be regarded as translations, according to the judge and both parties in the case. Because the Copyright Act considers a translation a duplication, self-made subtitles must also be regarded as such and permission is required for the creation and distribution of subtitles.
The Leave Subtitles Free Foundation has argued in support of its positions that the creation and distribution of subtitles falls under the freedom of expression enshrined in the constitution. The judge agrees. According to the court, intellectual property rights may under certain circumstances be subordinate to a principle such as freedom of expression. A balance of interests must then be made between the two. According to the judge, it is not possible to determine in general what prevails with self-made subtitles: intellectual property right or freedom of expression. This depends on the circumstances.
The case also included the accusation that Stichting Brein, in its enforcement action against the subtitlers, acted contrary to what is acceptable in society. According to the subtitlers, the conduct of Stichting Brein is therefore unlawful. For example, they do not think it is correct that Brein has not set out for which copyright holders Brein acts and how far Brein’s power of attorney extends to act for the copyright owners. The judge does not agree and states that it is unclear which standard Brein has violated. The subtitlers have not been able to demonstrate convincingly why Brein’s conduct was unbecoming and therefore unlawful.
Based on the claims of Stichting Laat Ondertitels Vrij, the judge has only established a certain legal relationship between two parties; he determines what is the correct valuation of a factual situation from a legal point of view. No compensation or fine was therefore claimed or imposed in the lawsuit. As the losing party, the foundation of the subtitlers only has to pay the costs of the proceedings of Stichting Brein, as is customary in civil law cases. This judgment does make it easier for Stichting Brein in the future to hold individual parties that create and distribute subtitles liable for infringement of the rights of the authors of film works.