Are quotes translated from English into Dutch copyright protected?

March 2020 the Dutch satirical television show “Zondag met Lubach” focused on the business model of the lifestyle
platform RUMAG. The company, with its own YouTube channel and webshop, is best known for its striking texts with white letters on a black background, in which the.spaces.between.the.words.have.been.replaced.by.a.dot.

Arjen Lubach, the host of Zondag met Lubach, explains that RUMAG's funny quotes are (in most cases) not made up by RUMAG itself, but are in fact translations of English quotes (made up by others) that circulate on the internet. RUMAG then adds the recognizable RUMAG house-style to the Dutch version of the quote and publishes it online. To get an idea of RUMAG's working method, I would like to refer to the Twitter account RU.MAG.NIET.STELEN (roughly translates to: RUMAG.may.not.steal) which fanatically keeps track of which quotes RUMAG does not seem to have come up with by itself.

One of the things that Lubach finds problematic is that RUMAG also uses the copied (translated) texts on, amongst others, clothing, home furnishings and accessories, and subsequently sells them via its webshop. In other words:
RUMAG earns money off of someone else's (copyright protected) work. To add to this, RUMAG acknowledges this itself. In an interview with the Fontys Denk Groter Debat (Fontys Think Bigger Debate, video only available in Dutch), founder and former CEO Thijs van der Heide discusses the copying of English quotes by RUMAG. In his opinion this is a "grey area". In the
statement (only available in Dutch) of RUMAG with regard to the broadcast of “Zondag met Lubach” it states that RUMAG is not a journalistic organization and plays by the rules of the worldwide web. According to the platform it produces its own content and
selects relevant global content for its audience. During the Fontys Denk Groter Debat journalist Harry Hol points out to Van der Heide that RUMAG does not operate in a grey area. On the contrary: the texts that are copied by RUMAG are protected by copyright and using them as RUMAG does, is not allowed, according to Hol. But is this actually true?

To answer this question, it is important to know which laws and regulations are applicable in this matter. RUMAG is established in the Netherlands, its activities (and possible infringing acts) take place in the Netherlands and are aimed at Dutch consumers. As a result, and in view of the legislation within the European Union, Dutch law is applicable. More specifically the Dutch Copyright Act. The rules of the “grey area’’ in which RUMAG operates and the rules of the World Wide Web that RUMAG supposedly follows
are not relevant in this matter. On the basis of the Dutch Copyright Act, it must be assessed whether the texts adopted by RUMAG are protected by copyright.

A text is eligible for copyright protection if it demonstrates a certain degree of creativity. This means that it should not be copied from a previously written text. In addition, it must also be the result of a product of the human mind, in other words: of creative choices. If a text is so banal or trivial that no creative labor can be identified, it is not eligible for copyright
protection.

In general, the threshold for obtaining copyright protection is relatively low. In case of a longer section of text, such as a book, article or blog, it will (in principle) quickly be assumed that it is a copyright-protected work. After all, a lot of creative choices can be translated into a story, without the risk of the text resembling someone else's writing.

Reaching this threshold of copyright protection could be more difficult when it concerns a shorter piece of text, such as an anecdote in a Tweet or a Facebook message. The highest legal body within the European Union (the Court of Justice) has ruled that only through the choice, sequence and combination of words that the result thereof can be protected by copyright. This can result in isolated sentences, or even certain parts of sentences in the text, containing a certain expression of creativity in an original manner
and thus being eligible for copyright protection (see p. 45-48).

Nevertheless, the threshold for obtaining copyright protection for a single sentence is higher. For example, the The Hague Court
of Appeal (judgement only available in Dutch) has ruled that the sentence "Zo. Nu eerst een Bavaria" (a well-known tagline of the
Dutch brewer Bavaria, roughly translates into “There, let’s first have a Bavaria’’) is not a choice, arrangement or combination of words in an original way and for that reason is not a copyright protected text. For a short tekst consisting of several sentences (such as the texts of RUMAG), the threshold may be higher than in the case of a longer text, but the threshold could be considered lower than in the case of a single sentence.

If a short text is protected by copyright, it is (legally) referred to as a "work". The creator of the work ("the author") has the
right (in principle) to prohibit anyone - who has not been given permission to do so - to publish and reproduce his or her work. Permission is required for, amongst others, the translation of a work.

This brings us back to the texts “by’’ RUMAG: short texts that are translated from English to Dutch. The question is whether the English quotes contain enough creativity to qualify as a work protected by copyright. It is, of course, up to the court to decide on this, but it is very plausible that at least some of these texts can be regarded as a work, given the threshold that applies to obtaining copyright protection. Since RUMAG has often copied the texts one-on-one (it has merely translated the texts and for this, as mentioned above, permission is required), in this context there is indeed copyright infringement.

Incidentally, there are exceptions to the rule that publishing or reproducing (such as translating) a work constitutes copyright infringement. For the sake of the scope of this article, it will suffice for now to state that probably none of these exceptions will offer solace to RUMAG.

RUMAG's luck - or, as mister Hol puts it, ‘Trumpian shamelessnes’ - has thus far resulted in it being able to go about its business uninterrupted for the past five years. After all, the authors of the works most probably know nothing about the infringing practices taking place in our little country. Many authors probably don't even know that they are authors and that they are able to invoke
intellectual property rights. And even if they were aware of that, it should take a lot of nerve to litigate about whether a Tweet of 280 characters is protected by copyright, with all the risks and thresholds that litigation entails. This applies all the more if an author does not live in the Netherlands, which will be the case for most authors of the works that have been copied by RUMAG. As a result, the chances of RUMAG “being caught’’ is relatively low. This does not, of course, invalidate the fact that RUMAG has
infringed the copyrights of others. 

RUMAG is (at least until recently) not concerned about possible proceedings and has already made its position on its profit model clear: during the aforementioned interview of RUMAG at Fontys Denk Groter Debat journalist Hol notes that RUMAG is apparently fine with the fact that it makes money off of someone else's creativity. Van der Heide's answer to this statement is loud
and clear: "absolutely".