Legal framework

Introduction

The BREIN foundation (Stichting BREIN or “BREIN”) is the Dutch joint content protection program of authors, artists, publishers, producers and distributors of music, film, games, interactive software, books and images. BREIN represents international branch organisations such as the Motion Picture Association MPA and the international association of music producers and distributors IFPI and their member companies as well as 10 national branch organisations and 16 collecting societies representing producers, publishers, composers, text writers, writers, photographers, directors and all kind of performing artists such as musicians and actors. 

For a complete overview of all the parties, along with their members, that participate in BREIN, see stichtingbrein.nl/aangeslotenen.

Legal framework and authority to enforce for the benefit of all rightsholders

BREIN’s Articles of association state the following as BREIN’s objects (translation from Dutch):

“To counteract the unlawful exploitation of information carriers and information and to represent for that purpose the interests of the right holders to information and of the lawful exploiters thereof, in particular of those affiliated with BREIN and specifically by maintaining, promoting and obtaining sufficient legal protection of the rights and interests of those rightsholders and exploiters, all this in the broadest sense.”

Pursuant to its Articles and, or at least in conjunction with, Article 3:305a of the Dutch Civil Code, BREIN may issue legal claims on behalf and for the benefit of its participants and other interested parties as sole plaintiff. Article 3:305a(1) states that:

A foundation or association with full legal capacity which, according to its articles of association, has as objects to protect specific interests, may bring to court a legal claim that intends to protect similar interests of other persons.

Although BREIN’s participants together constitute the lion’s share of copyright holders and content creators, such wide representation is not a requirement to be entitled to initiate legal proceedings. According to the Dutch Supreme Court the interested parties (referred to in the articles of association) are not required to provide an explicit power of attorney to the foundation to initiate proceedings on their behalf [1].  

[1] Dutch Supreme Court, 26 February 2019, ECLI:NL:HR:2010:BK5756 (Stichting Baas in Eigen Huis v. Plazacasa)