YEARBOOK 2009 / I - AIPPI

Summary
First of all, we would remind you that, in Belgium, there is neither a uniform law regulating the coownership
of all intellectual property rights nor a complete co-ownership system specified by each
piece of special IP legislation Therefore, in the absence of specific dispositions, Belgian common
law on co-ownership will apply to intellectual property rights.
1. Impact of the voluntary or “forced” origin of co-ownership
None of the special IP laws distinguish between the methods of exploitation of an IP right on the
near basis of whether the co-ownership of this right has been established voluntarily or if this was
“forced”.
While common law on co-ownership does differentiate between different kinds of co-ownership
according to the circumstances in which the co-ownership was created (“ordinary/fortuitous”,
“forced” and “voluntary”), this distinction is purely terminological as, in practice, the co-owners’
prerogatives are basically the same (free disposal of his/her co-owned share), independently of the
kind of co-ownership considered.
2. Possibility for a co-owner to sub-contract the exploitation of his co-owned
share
None of the special IP laws regulate this matter, so common law must apply.
Each co-owner can personally exploit the co-owned good. Yet, the right to grant the use of a right
on this good, including, for example, to call in a sub-contractor, requires the agreement of all the
co-owners.
However, we note that there is no unanimity on the fact that this common-law principle can be
applied to patent rights, as some argue that the co-owner of a patent is entitled to call in a subcontractor
without the other co-owners’ approval.
3. Impact of the nature of a licence (exclusive or not) on the co-owner’s right
to grant licences
Whereas the law on patents contains a specific disposition on the question of granting a licence,
the other special IP laws do not contain any such disposition, so once again, common law applies.
In any case, whichever law applies, and whatever the nature of the licences, the agreement of
every co-owner is required. If this cannot be obtained, a court can be asked to make a ruling on
the question.
4. Possibility to transfer or assign all or part of a co-owned share of an IP
right
Once more, the law on patents is the only one which includes a disposition on this question: it
states that, when a co-owner wants to transfer all or part of his share, the other co-owners have a
right of pre-emption for 3 months from the date the co-owner notifies them of his/her intention to
transfer the right.
For all other IP rights, common law stipulates that a co-owner can transfer all or part of his/her
share without having to ask for the other co-owners’ agreement.
5. Competition rules applying to the co-ownership of an IP right
In the absence of any other specific rules, the general law on competition applies to co-ownership
of IP rights.
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