Copying another company’s general terms and conditions (algemene voorwaarden) is risky under Dutch law on three separate grounds: copyright, unlawful act and the validity of the terms themselves. The exception is short standard phrasing, which is too generic for copyright protection; but even then, terms written for someone else’s business rarely protect yours.
The biggest risk is usually not a claim from the original author but terms that fail when you need them. Under Article 6:233 of the Dutch Civil Code (BW) a clause is voidable if it is unreasonably onerous, or if you did not give the other party a reasonable opportunity to read the terms.
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What are general terms and conditions?
Under Article 6:231 BW they are one or more clauses drafted to be included in a number of contracts, except clauses on the core of the performance, such as price and product, if clearly worded. They typically cover delivery, payment, liability, complaints and returns.
The statutory rules in Articles 6:231 to 6:247 BW protect the other party. Consumers get extra protection through a black list (Article 6:236 BW) of clauses that are always unreasonably onerous and a grey list (Article 6:237 BW) of clauses presumed to be so.
Are general terms protected by copyright?
They can be, if the text as a whole is original. Under the Dutch Copyright Act (Auteurswet) a work is protected when it is the author’s own intellectual creation and bears a personal stamp; standard phrases such as “complaints must be submitted within 14 days” do not meet that test.
The Supreme Court (Hoge Raad) confirmed in Stokke of 22 February 2013 (ECLI:NL:HR:2013:BY1529) that a selection and combination of individually unprotected elements can itself be protected if it reflects the maker’s own creative choices. For business texts this means the structure, arrangement and specific wording of a well-drafted document may be protected even where individual clauses are not.
The District Court of Midden-Nederland applied this to business texts on 2 March 2022 (ECLI:NL:RBMNE:2022:1054). It held that marketing texts on a cleaning company’s website were protected because of the authors’ choices in structure and wording, ordered the competitor to stop the infringement and awarded damages to be assessed later.
What can the original author claim?
- an injunction ordering you to stop using the text, often with a penalty payment for each breach;
- damages, often based on the licence fee you should have paid;
- surrender of the profit made from the infringement (Article 27a Auteurswet);
- in intellectual property cases, reimbursement of the reasonable legal costs actually incurred, which is usually far higher than the standard cost order.
Criminal liability under Article 31a Auteurswet is limited to intentional distribution or possession of infringing material, for example for profit, and plays little role for copied terms. Dutch law has no punitive damages.
Can copying be unlawful without copyright?
Yes. Taking over a competitor’s document can be an unlawful act (onrechtmatige daad) under Article 6:162 BW if additional circumstances apply, such as causing confusion with the competitor or profiting from its investment without effort of your own.
Courts apply this cautiously: copying unprotected material is in principle free, so the claimant must show what makes the copying unlawful in this case. Copied terms that mislead consumers, for example about returns or a dispute committee you are not a member of, can also be an unfair commercial practice under Article 6:193b BW.
Why do copied terms often fail in a dispute?
Because validity depends on how you use the terms, not on their wording alone. Copied terms are often not properly provided to the customer and contain clauses that do not fit your business.
Did the customer have a reasonable opportunity to read them?
Under Article 6:234 BW you must hand over the terms before or when the contract is concluded. In an online sale you must make them available electronically before or at conclusion, in a way the customer can store them. If you do not, the customer can annul the clauses under Article 6:233(b) BW, and you fall back on the statutory rules.
A practical set-up is a link to the terms next to the order button, a downloadable PDF and the terms attached to the order confirmation. Large companies cannot invoke this ground: under Article 6:235 BW it is not available to a company that publishes its annual accounts or employs 50 or more people.
Are the clauses reasonable for your business?
A clause is voidable under Article 6:233(a) BW if it is unreasonably onerous in the circumstances. A limitation of liability that suits a multinational can fail for a small service provider, and a consumer can rely on the black and grey lists of Articles 6:236 and 6:237 BW.
Do the terms match what you actually do?
Copied terms often contain the wrong company name or Chamber of Commerce (KvK) number, a return period that contradicts your website, a dispute committee you are not a member of, or services you do not offer. In consumer contracts, an unclear clause is interpreted in the way most favourable to the consumer (Article 6:238(2) BW), and inconsistencies can mislead consumers.
What happens if both parties use their own terms?
Between businesses, under Article 6:225(3) BW the first reference to general terms prevails, unless the second reference expressly rejects the first. A copied set that lacks that rejection clause may leave you bound by the other party’s terms.
How do you get valid terms of your own?
Start from your own business processes, not from someone else’s document. Two routes are sound:
- Tailor-made terms drafted for your sector, contracts and risks, including liability, retention of title, payment and applicable law.
- Industry model terms from a trade association, if membership allows you to use them, reviewed and adapted to your own operations.
Text generated by an AI tool or translated from foreign terms needs the same review: foreign terms do not reflect mandatory Dutch consumer law, and AI output often contains wrong or outdated rules.
What should you check as a business using general terms?
- Whether the terms were drafted for your business and not copied from another company.
- Whether your company name, KvK number and contact details are correct.
- Whether customers receive the terms before or at conclusion of the contract, also online (Article 6:234 BW).
- Whether return periods, delivery times and liability clauses match your actual practice and your website.
- Whether consumer clauses avoid the black and grey lists of Articles 6:236 and 6:237 BW.
- Whether your B2B terms expressly reject the other party’s terms (Article 6:225(3) BW).
What should you check if your terms have been copied?
- Whether your text is original in structure and wording, or mainly standard phrases.
- Evidence of authorship and date: drafts, version history, invoices for the drafting.
- Screenshots of the copied text with date and URL.
- Whether the copying also causes confusion with your business, which supports a claim under Article 6:162 BW.
- Whether a summons letter with a cease-and-desist declaration is enough, or summary proceedings (kort geding) are needed.
What can we do for you with general terms and conditions?
Our lawyers draft and review general terms for businesses; see also our civil lawyer page.
- We draft general terms tailored to your business, sector and contracts.
- We review your existing terms against Articles 6:231 to 6:247 BW and consumer law.
- We check how your webshop or quotation process provides the terms to customers.
- We send a cease-and-desist letter when your terms have been copied, or respond to one you have received.
- We conduct summary proceedings for an injunction against infringement.
Summary
- Copying general terms risks a copyright claim, an unlawful-act claim and terms that fail in a dispute.
- Original terms can be protected as a whole even if single clauses are standard (Stokke, ECLI:NL:HR:2013:BY1529).
- Clauses are voidable if unreasonably onerous or if the customer had no reasonable opportunity to read them (Article 6:233 BW).
- Consumers are protected by the black and grey lists of Articles 6:236 and 6:237 BW.
- Tailor-made or properly adapted industry terms are the reliable alternative.
Frequently asked questions
Can I copy a few sentences from a competitor’s terms?
Short standard phrases are usually not protected by copyright. Taking over the original structure or distinctive wording can be infringement, and mixing copied text with your own often creates contradictions that weaken the terms.
Are terms that I never sent to the customer still valid?
Not reliably. If you did not give the customer a reasonable opportunity to read them before or at conclusion of the contract, the customer can annul the clauses under Articles 6:233(b) and 6:234 BW, unless it is a large company covered by Article 6:235 BW.
Can I use translated foreign terms in the Netherlands?
Copyright protection also applies to translations, and foreign terms are not drafted for Dutch law. Mandatory Dutch consumer rules, such as the black and grey lists in Articles 6:236 and 6:237 BW, apply regardless.
What happens if I keep using copied terms?
You remain exposed to an injunction and a damages claim from the author, and to clauses that a court may annul when you rely on them. Replacing them removes both risks going forward.
