Database

The business software industry has reported to experience high rates of unlicensed software use in the business sector. Although there has been a substantial amount of cooperation between industry and police to take action against online infringements, it is reported that numerous prosecutorial bottlenecks ultimately prevent cases from moving forward.

In the European Union, there is no general principle for the use of copyright protected material comparable to the fair use/fair dealing principle in the US. Directive 2001/29/EC defines an optional, but exhaustive set of limitations from the author´s exclusive rights under the control of the “three-step test”. This is a clause in the Berne Convention that establishes three cumulative conditions to the limitations and exceptions of a copyright holder’s rights. The Directive has been transposed by Member States with significant freedom.

Poland implemented the Directive in 2004 by defining a close list of exceptions. A test similar to the three-step test exists, but it is only two-step. It stipulates that a use of a copyrighted work ‘may not infringe upon normal use of a work or justified interests of the author’.

In 2013, a unified European system of patent's granting and enforcement was approved. The Unitary Patent (UP) provides a single pan-European patent as an additional option for companies or investors seeking patent protection in Europe. The system would ensure uniform protection in 26 Member States (Croatia and Spain have opted out over language issues, while Italy became a participant in September 2015) and also includes a litigation system within a Unified Patent Court (Bulgaria, Croatia, Italy, Poland and Spain have opted out).

It is reported that the right of access to public procurement is limited to regional trade agreement partners and members of the WTO’s Government Procurement Agreement.

The European Regulation No. 1042/2013 amending the Council Implementing Regulation No. 282/2011, declares that from January 2015, all supplies of telecommunications, broadcasting and electronic services will be taxable at the place where the customer belongs. These include, inter alia:
- images or text, such as photos, screensavers, e-books and other digitised documents e.g. PDF files;
- music, films and games, including games of chance and gambling games, and of programmes on demand;
- online magazines website supply or web hosting services distance maintenance of programmes and equipment;
- supplies of software and software updates advertising space on a website.

Both EU and non-EU suppliers have to register for VAT purposes and comply with the relevant obligations of the Member State where the customer is established, has his/her permanent address or usually resides. This may be burdensome as there are 81 VAT rates across the 28 EU countries and the rates may vary between 3% (Luxembourg) to 27% (Hungary) across member states. Furthermore, member states impose varying thresholds at which companies must begin paying VAT, ranging from EUR 0 to EUR 60,000.

As an alternative to obtaining multiple VAT registrations in each Member State where a supplier has a customer, affected suppliers may be able to opt to account for VAT across the EU via a a web-portal in the Member State in which they are identified. Hence, the system, known as the Mini One-Stop Shop (MOSS) scheme, allows taxable persons to avoid registering in each Member State of consumption.

The EU Copyright Directive allows “fair compensation” for copyright owners. As a result, several Member States have imposed national levy systems.

In Poland, copyright levies are applied on recording media and equipment. The following duties are applied:
- MP3 single function: 3.00% of sale price
- CD-R 12 cm: EUR 1.72
- MD record (MiniDisc): EUR 3.00
- Memory card (including pen drive and other semiconducting massive storage devices): EUR 0.47
- Radio-cassette recorder: EUR 0.96
- Computer hard disc standard: EUR 1.00
- Other computer hard discs included in the remaining devices allowing fixing of works or subjects under the neighbouring rights, including audio or audio-visual: EUR 1.00
- Computer CD recorder: EUR 1.54
- DVD RAM 12 cm: EUR 3.00
- Blu-Ray RE 12 cm: EUR 2.10
- DVD player with recording function: EUR 1.46
- High definition player with recording function and hard disc: EUR 1.85
- TV set comprising video recorder: EUR 0.51
- TV set comprising DVD recorder and hard disc: EUR 0.87.

The Remote Betting and Gaming Bill aims at creating a basis for a licensing system for online gambling, but it is still debated in the parliament.

The European de minimis threshold for import duties is harmonized. Goods with a value of up to 128 SDR / 150 EUR / 186 USD are exempted from customs duties. The VAT de minimis threshold is not harmonized within the EU and can vary between 10 and 22 EUR, i.e. Member States can decide on a value within this range to grant an exemption on VAT for imported goods.

According to the Netherlands' de minimis rule, goods with a value of up to 19 SDR / 22 EUR / 27 USD are exempted from VAT.

Locatisation requirements apply to public records that have to be stored in archives in specific locations in the Netherlands. This applies both to paper and electronic records.

There is an increased minimum salary for high-skilled workers from non-EU countries.

When a foreigner is in the possession of valid working permit and not younger than 18 or older than 45 years, he/she must have access to housing and the vacancy must be notified to UWV (Employee Insurance Schemes Implementing Body) before application can be considered.

For contractual service suppliers (CSS) and independent service suppliers (ISS), labour market tests are applied. Overall, it needs to be shown that the post for which the CSS and ISS applies is of vital interest for the Dutch economy. Exemptions to this rule are, however, possible.

A CSS needs to apply for a work permit, which is only issued with a positive "labour market advise" from the Public Employment Service.

Telecommunications networks and services are fully liberalized and competition rules apply. Nonetheless, KPN (the Dutch telecom incumbent) owns the national copper network.

The Netherlands is reported to have mild copyright laws, enabling the public to make a so-called “home copy”. This means that downloading copyright material for your own use is permitted, however certain restrictions apply. It appears that a person may also legitimately download from an illegal source.

In the European Union, there is no general principle for the use of copyright protected material comparable to the fair use/fair dealing principle in the US. Directive 2001/29/EC defines an optional, but exhaustive set of limitations from the author´s exclusive rights under the control of the “three-step test”. This is a clause in the Berne Convention that establishes three cumulative conditions to the limitations and exceptions of a copyright holder’s rights. The Directive has been transposed by Member States with significant freedom.

In the course of implementing the European Directive, the Dutch legislator decided to maintain a closed system of carefully-defined copyright limitations. Netherlands follows the droit d’auteur (author’s right) tradition, where exceptions are enumerated in an exhaustive fashion and the law does not provide for an overriding rule of fairness.