On 22 June 2012, the Supreme Court rendered its judgment in Knooble v. Dutch State and DSI. The Supreme Court ruled on the hotly debated issue whether technical standards of the Dutch Standardization Institute ("DSI") (known as "NEN-normen") referred to in the Dutch Building Act ("Bouwbesluit 2003") are protected by copyright. The Supreme Court endorsed the current legal and economic practice in which the standards are: (i) protected by copyright, (ii) publicly available for a reasonable fee, and (iii) can be viewed free of cost at DSI and at Delft University's library.
Standards ensure the uniformity of products and services and their desired characteristics, including quality, safety and reliability. In the Netherlands, DSI promotes the ongoing development of standards and any related procedures. As such, DSI plays an important facilitating role, as it administers and publishes an extensive collection of national and international standards, and holds the corresponding copyrights. Numerous provisions of the Dutch Building Act make reference to DSI's standards, making knowledge of the standards relevant. The standards can only be obtained through DSI as copyright holder.
Knooble, a private company offering administrative software to the building sector, initiated proceedings against the Dutch state and DSI. Knooble claimed that the standards referred to in the Building Act should be made available to the public free of charge. Knooble based its claim on the notion that standards form an integral component of legal provisions. As such, they should be made available to the public in accordance with the Dutch Publication Act ("Bekendmakingswet"). Moreover, Knooble alleged that the standards would not be protected by copyright. Pursuant to Article 11 of the Dutch Copyright Act, there is no copyright on legal provisions or on decrees issued by public authorities.
The Supreme Court ruled that DSI does not have legislative power, affirming the opinion of the Advocate General and the ruling of the Court of Appeal. Referral to the DSI standards in the Building Act does not change the fact that DSI does not have legislative power. Consequently, these standards, although generally applicable, are not legal provisions, within the meaning of Article 11 of the Dutch Copyright Act. As such, they are not exempt from copyright.
Notably, the Supreme Court also awarded DSI compensation of legal costs in the amount of EUR 60,000 in accordance with Article 1019h Dutch Code of Civil Procedure. This is the largest amount that has been awarded by the Supreme Court in legal costs in copyright and trademark proceedings based on this provision to date.Tobias Cohen Jehoram and Vivien Rörsch of De Brauw represented DSI before the Supreme Court.