Copyright

What is copyright?

 

 

Copyright is a right that subsists on an original creation and belongs to the author of the creation.

 

An idea or concept as such is not protected by this right but only the specific expression of an idea or concept.

 

To be validly protected through copyright a work must be original.


Works which may be protected by copyright vary widely: not only music, literature or other art forms are covered. In fact, artistic content is not a criterion and copyright protection may therefore also subsist in industrial design, logos, packaging layout, website layout, etc.

 

However, please note that in Belgium the copyright always primarily accrues to the actual creator, even if he is an employee or contractor. A company can acquire such rights only after transfer. It should also be noted that buying the creation itself is not the same as taking over the copyright to that creation.

 

Overlaps with other intellectual property rights are possible, such as design and trademark rights.

 

Brantsandpatents will help you to identify what within your company can be protected by copyright and whether this protection is sufficient.

 

We can also determine whether it is necessary to lay down provisions in employment contracts or clauses in agreements with contractors to ensure that you will definitely be or become the copyright owner.

 

 

 

Registration

 

 

Copyright arises through the creation itself and is not subject to mandatory registration. There is therefore no copyright register in Belgium.

 

However, it is recommended to make sure you have proof that you hold the copyright to a particular creation. In particular when you have not yet disclosed your creation to the outside world you may have it recorded that you are in possession of the creation at that moment, e.g. by:

  • registering with the Department of Registration and Public Property of the Belgian Ministry of Finance;
  • intervention by a notary public;
  • submitting an I-depot with the Benelux Office.

 


Brantsandpatents can advise you whether such a form of registration is desirable and can fulfil the necessary formalities on your behalf.

 

 

 

Rights /Benefits

 

 

The copyright owner enjoys protection for the creation up to 70 years after the author's death. He exercises control of the way in which the creation is used by third parties and is entitled to take legal action against:

  • reproduction of the creation: e.g. copying a mascot or cartoon character; copying of the promotional texts by a competitor; the use of photographs that you have taken by your competitor;
  • adaptation of the creation, e.g. when a competitor is making a film based on your book or is using the layout of your website for his product catalogue.

 

These rights may also be separately transferred or licensed to others. This may be an interesting source of income which under certain circumstances may also be favourable from a taxation point of view.

 

Please note: the public authorities do not usually intervene in copyright disputes. You must therefore, in collaboration with your consultant or copyright association (e.g. Sabam), enforce your copyright via the appropriate procedures. Any legal action you need to take should be initiated as early as possible against counterfeiting or imitation, as on the one hand this gives you a better chance to reach a negotiated settlement and on the other hand the financial costs will usually be much lower.

 

For (industrial) designs and logos, the copyright has restrictions compared with design or trademark rights:

  • a narrower scope of protection: you have to prove that the other party has effectively copied your creation and was therefore aware of its existence;
  • more difficult burden of proof: a design or trade mark registration is proof of your ownership until evidence is produced to the contrary, whereas you yourself have to prove that you hold a copyright;
  • infringement procedures: on the basis of a European design or trademark registration you can in a single procedure take legal action against an infringement in several EU member states, whereas copyright has to be enforced in each country separately;
  • overlapping rights: in various countries, it is much more difficult to claim copyright if the creation is also covered by design rights.

 

 

 

 

Obligations

 

 

Copyrights are not subject to obligatory registration nor is the use of © mandatory. However, it is advisable to use this sign to indicate to third parties that you own a copyright. Moreover, there is a legal presumption that the person whose name appears on the creation is the creator unless proof is shown to the contrary. It is therefore advisable to consistently indicate the following on your creations:


© [name] [year of creation]

 

 

 

Where?

 

 

Since there is no registration requirement, most countries do not have any registration system. However, a copyright register does exist in the USA, although registration is not compulsory.

 

It is important to note that copyright is a national right and that the conditions of protection or its interpretation may differ from one country to another. For instance, in some countries there are rules restricting the overlapping of design rights and copyright.