Our firm specialises in Intellectual Property, ICT Law, and Media and Entertainment Law and has a solid expertise in all related specific branches of law.
- INTELLECTUAL PROPERTY
An intellectual property right is an exclusive right that offers protection for qualifying ‘products of the human mind’. However, ideas, concepts, processes, methods or formulas cannot per se be protected by this kind of exclusive right. Only the (formal) expression thereof may be protected by an intellectual property right. Depending on the object and the objective of the protection, the available intellectual property rights differ in terms of their nature, scope and duration.
Where none of the protection regimes described here qualify it may be appropriate to protect the relevant object (e.g. a formula, business process, recipe or concept) contractually as a ‘business secret’ (by means of confidentiality agreements or so called ‘non-disclosure agreements’) and even materially (i.e. in a safe-deposit box). An example that appeals to the imagination is the recipe of the soft drink Coca Cola, which has been behind lock and key ever since its creation.
- Copyrights and related rights
Copyrights protect literary or artistic works that are ‘original’ in the sense that they bear the ‘mark’ of the maker. Copyrights and related rights are essentially exclusive rights under which the proprietor can prohibit others from reproducing his works or communicating them or making them available to the public. This subject matter is harmonised more and more across borders. At the international level, this is accomplished through treaties, at the European level through directives and explanatory case law.
A complete understanding of the relevant legislation and case law is – like insight into the practices in the sector – a necessary condition if you, as an author, composer, artist, producer, broadcaster or other entitled party, wish to protect and exploit your rights.
Throughout the years our firm has built up strong practical experience in the drafting and negotiating of author agreements (including publishing agreements), artist agreements, licence agreements (including obtaining consent, so called ‘clearances’, for dubbing in radio and television spots or films, adaptations and/or translations), distribution agreements, production agreements, broadcasting agreements, and any and all other agreements in the creative sector. Resolute insight into the interests and mechanisms of the creative sector is a decisive trump card with which our firm distinguishes itself from others.
In addition to offering advice and carrying on contract negotiations both nationally and internationally our firm assists several parties during the start and expansion of their activities and the protection of their relevant rights. The enforcement of these rights, e.g. in case of ‘counterfeiting’ (imitation, depending on the context also referred to as ‘plagiarism’ or ‘piracy’), forms an inextricable part of this. To enforce these rights the most appropriate legal proceedings are, where necessary, instituted and the customs authorities are, where possible, involved. Our firm also offers legal and business advice in terms of the selection of the most appropriate operational structure when exploiting the intellectual property rights, joining collective management organisations (also referred to as “collecting societies”) and negotiating membership terms, the drafting of model agreements, etc. Finally, our firm is also consulted for ‘due diligence’ assignments in case of takeovers of businesses that have built up intellectual property.
- Design rights
Designs play an important but often neglected part in our lives. As well as influencing the appearance of the clothes we wear, the shape of the chairs we sit in and the surfboards we ride, design also influences the decisions we make as consumers: why it is we choose one toothbrush over another. The practice of design covers a wide variety of domains. These range from industrial design, urban planning, graphic design and stage design through to costume design, fashion design, product design and packaging design.
Not surprisingly, intellectual property protection plays an important role in regulating the creation and use of designs. Over time a number of different areas of intellectual property, such as trademarks and passing off, have been used to protect designs. There are, however, areas of intellectual property law, which are more commonly used to protect designs: the registered design system established by the Benelux Convention on Intellectual Property (marks and designs) of February 25, 2005, copyright protection provided by the Law of June 30, 1994, on Copyright and Neighbouring Rights, and the 'unregistered design right' protection laid down by Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs. Depending on the case at hand the appropriate protection regime is to be relied on.
Our firm looks after divergent cases related to design rights. For instance, assistance and advice is offered during the registration and further follow-up thereof. In addition our firm is consulted about the enforcement of rights, including legal disputes, and on the drafting and negotiation of, inter alia, production and licence agreements. Since 2010 we have also been the designated law firm of the Union of Designers in Belgium (UDB), the only recognised national professional association of interior architects, interior designers, graphic designers and product developers.
To enforce design rights, e.g. in case of counterfeiting (depending on the context also referred to as ‘plagiarism’ or ‘piracy’) or infringement of distribution rights, the most appropriate legal proceedings are, where required, instituted and/or the customs authorities are involved in order to block the infringing products. Each and every specific situation requires an appropriate strategy.
- Trademark rights
A trademark confers on the proprietor certain exclusive rights to use a particular sign in relation to specified commercial activities. The sign (word, image, form, colour or even a scent) must be capable of distinguishing the goods and services of one undertaking from those of other undertakings. A trademark often turns into the most important asset of a business. The ‘Apple’ brand, for instance, is estimated to be worth approximately EUR 113 billion, ‘Google’ EUR 67 billion, and Coca Cola approximately EUR 65 billion. These kinds of commercial values are impossible without accurate trademark protection.
Registration with the competent authorities is necessary for a trademark to be protected. Once a trademark (word, image, form, colour or even smell) has been registered the trademark proprietor may, on the basis of his exclusive right, and under well-defined conditions, prohibit any third party from using an identical or similar mark. A trademark can be registered at several levels: at the national (in our case, the Benelux), the international and/or the Community (European) level.
Our firm is consulted with regard to the expansion and enforcement of trademark rights and portfolios (registration of trademarks, strategic and substantive trademark advice, institution of opposition procedures) and the exploitation thereof (e.g. franchise and licence agreements). In case of an infringement of a trademark right (counterfeiting, infringement of distribution rights, etc.) the appropriate legal proceedings are, failing an amicable solution, instituted, and the customs authorities are, where appropriate, involved in order to block the infringement goods.
- Patent rights
A patent is a limited monopoly that is granted in return for the disclosure of technical information. In order to obtain such a right, the applicant is required to disclose his invention so that it can be used by a 'person skilled in the art'. In return, the state issues the applicant with a patent that gives him the exclusive right to control the way his patented invention is exploited for a twenty-year period. While the protection provided by a patent is not as long as the protection provided by copyright law or possibly trademark registration, the rights granted are more extensive. The rights granted to the patent owner cover most commercial uses of the patented invention. In addition, the rights will be infringed irrespective of whether or not the defendant copied from the patented invention.
A patent can be applied for at the national and the international level (European Patent Convention). Since 2012 several components for a Unitary Patent Protection (also referred to as “the European patent with unitary effect” or the "European Union patent") have been approved at the European level by way of regulations and a corresponding treaty. As an insufficient number of countries have ratified the relevant treaty it appears that the entry into force may still take some time.
Our firm is consulted about disputes under patent law and for technology transfers. If so desired cooperation with external technical experts takes place. We also offer advice with regard to the favourable tax measures for patent income that offer considerable financial advantages for proprietors of inventions.
In case of infringements of a patent (e.g. in case of counterfeiting) the most accurate strategy is elaborated and the corresponding legal proceedings are instituted. If so desired the customs authorities are involved in order to block infringing products.
- Plant Variety Protection and Biotechnology
This component of intellectual property law is related to the protection status of plant varieties and of biotechnological inventions.
Files in this subject matter are looked after in association with external technical experts in order that the legal steps can be substantiated on a solid scientific basis.
- ICT LAW
ICT law is a collective name for the broad range of legal disciplines that the digital world has to deal with and regulates the legal consequences of the use of information and communication technology in our society.
The digital era creates numerous legal challenges. They are related to, inter alia, the privacy and the protection of (personal) data, intellectual property (apart from the traditional exclusivity rights like the copyrights and the trademark rights there is also question of legal protection for computer programs, databases, semiconductor chips, and domain names), electronic commerce, and agreements via the internet, typical ICT agreements for the development of computer programs and the supply of certain information services (‘Service Level Agreements’, cloud computing, etc.), the legal validity of the electronic signature, rules about online advertising and spam, the freedom of expression via the internet, telecommunications law, competition law, online crowd funding, online competitions and games of chance, computer criminality, criminal and civil liability, international private law, etc.
As digital represents the ‘new normal’ and our daily lives are, both personally and professionally, inextricably linked with it this legal domain belongs to the everyday practice of our firm. The importance of correct compliance with the legislation and regulations cannot be underestimated. In the future infringers of, for instance, privacy rules will, apart from the confrontation with legal issues, be subject to significant financial penalties. The European Union is currently working on unified privacy regulations, which illustrates the importance of this subject matter even more.
- MEDIA AND ENTERTAINMENT LAW
Media and Entertainment law is the collective name that is used to refer to the various legal areas that deal with the media and entertainment sector. They include not only intellectual property rights and all related agreements, but also certain constitutional rights and personality rights (freedom of expression, the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of his or her identity, right of reply), tax rights (tax optimisation of agreements and (pre-) ruling requests with the ruling commission), social rights (social status of the artist, obligations of authors / journalists and artists, rules with regard to child labour, etc.), subsidies, general contract law (e.g. management and booking agreements, agreements for the provision of services, ...), criminal law (e.g. defamation and slander, press offences, etc.).
Our firm represents a wide variety of parties in these areas of the law that originate from all segments of the artistic and media sector, including journalists, both during contract negotiations and within the framework of judicial and extrajudicial disputes.
As quite a number of businesses, organisations, and artists cannot exist without subsidies our firm is also consulted for the preparation and submission of subsidy files to the relevant competent authorities.
- SPECIAL TOPICS
- Commercial law and contract law
‘Commercial law’ covers the rules that are applicable to commercial transactions, including the relevant concluded agreements. This does not only regard the purchase and rental, or hire of services and other traditional agreements but also sponsorship agreements or general and special terms and conditions that a business uses in its relationships with its customers (‘B2B’ and/or ‘B2C’). Invoice matters and disputes also fall under this heading. The legislation with regard to commercial practices is of utmost importance when doing business. Non-observance of this legislation, e.g. in case of unfair competition, may result in considerable sanctions.
Each and every person or business that is active in business transactions is inevitably confronted with these aspects of the law on a daily basis. Our firm consequently also offers continuous support in this area.
- Privacy and Data Protection
We are not always aware of our personal data being processed, but these processing operations play an important part in our everyday lives: in public administration as well as in healthcare, social security, telecommunication, financial services and direct marketing. Personal data include: a person's name, a picture, a phone number (even a professional number), a code, a bank account number, an e-mail address, a fingerprint, ...
In Belgium, the Privacy Act of 8 December 1992 (the so-called "Privacy Act") aims to protect individuals against abuse of their personal data. It contains the rights and obligations of individuals whose data are processed, as well as the rights and obligations of those processing the data. At European level and on a global scale, too, there are laws and standards for the protection of privacy and personal data. One of the main European legal instruments is Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. On an international level, there are OECD guidelines, ISO standards and reference texts on the protection of privacy and personal data adopted by the United Nations.
Pursuant to the Belgian Privacy Act, the Commission for the Protection of Privacy (CPP), better known as the Privacy Commission, ensures that the fundamental right to personal data protection is respected. As a data protection authority the Privacy Commission is not alone in Europe: there is a counterpart in every EU member state. In application of Directive 95/46/EC every EU Member State must establish such an authority. These data protection authorities meet in the context of the “Article 29 Working Party” on the protection of personal data.
Our firm renders advice and assistance in view of compliance with the privacy obligations. The member states of the European Union are working towards a harmonised Privacy Regulation. In this context, infringement of privacy obligations will be sanctioned with severe penalties.
- Clearances (synchronisation, sampling, translations …)
Synchronization – If a producer of an audio-visual production (TV, film, advertising ...) or radio spot wants to use existing music, then a prior permission of the copyright holders is required. It is important to contractually define the license terms of such synchronizations with care, whereby a good knowledge of the remuneration rates in the sector is desirable.
Sampling – If you want to use a fragment of an existing work/recording for a musical work or sound recording, then the prior approval of the right holders is required. Also here, it is important to close an agreement with well defined terms, whereby good knowledge of customary remuneration models for this use is essential.
Translations, adaptation – If you wish to make a translation or adaptation of a (musical) work, the consent of the right holders is required. Our office guides negotiations and offers appropriate contractual support in this respect.
- Fiscal law and rulings
Since the law of 16 July 2008 on the tax treatment of copyright income, copyright income is qualified as investment income. This means that the one who pays out copyrights has to pay a withholding tax of 15% ‘at source’. As from 2012, however, this copyright income must always be mentioned in your tax return. Since remunerations for services are subject to the normal income tax regime, unlike copyright income, contracting parties are mostly seeking to qualify a maximum part of the remuneration as copyright fee.
Our office advises copyright owners, producers, interim agencies etc. to ensure optimal and acceptable agreements in terms of tax treatment. Since the introduction of the possibility of "prefiling", we may recommend to seek an advice in preparation for a possible ruling at the competent department of the federal public service finance.
- Social law
There is a lot of uncertainty in the interpretation of some social legislation in the creative sector. Our office advises artists and other actors in the field on an optimal implementation of the regulations in force. In this context, we offer a day-to-day legal support to the Actors Guild and we work towards a consistent legal framework in consultation with interest groups and politicians.