Wednesday, April 7, 2021 - 15:17

DRAFTING AN IP AGREEMENT: MAX NG’S THREE STEPS

The Managing Director of Gateway Law weighs in.

MaxNg

BY ASHUTOSH RAVIKRISHNAN

For Mr Max Ng, drafting commercial IP agreements involves a three-step process that he has refined over his two decades in the law. “I started practising IP law more than 2 decades ago almost by accident,” he tells SAL. “The IP partners of my then-firm must have taken a liking to this young pupil and decided to take me into their leading IP practice. It has been a wonderful journey so far, and the speed of change in the area ensures that I am never bored.”

His comments on change are especially prescient, given the upcoming legislative amendments to the Copyright Act. These amendments represent a continual modernisation process of Singapore’s IP laws, to take into account technological advances as well as Singapore’s commitments to its treaties. Mr Ng, who is the Managing Director of Gateway Law, says that the three-step process will still be relevant as and when these changes take effect. “When there are changes, the local IP precedents will likely also have to be adapted accordingly,” he says. “However, my position on the benefits of local IP precedents remains the same: they will provide a helpful guide that lawyers can then adapt to their specific purposes.”

Here’s his three-step process:

1.      ENGAGE: “This allows you to understand the client’s business and what stage they are at: for example, whether they are a start-up or an established business. The initial engagement also sheds light on what the client wishes to achieve from having these agreements put in place.”

2.      CONTEXTUALISE: As Mr Ng notes, the general laws are always applicable. “It’s the context that makes each agreement different.” In this vein, those drafting IP laws should contextualise their agreement to consider their client’s business, operating model, materials and needs.       

3.      DRAFT: Says Mr Ng, “The actual drafting comes about quite quickly, once we establish a foundational understanding of our approach.” Precedents speed up this process but he cautions that these must be used with care. “The actual context and specific intention of one’s client must always be paramount.”

Another point to consider is how drafted agreements will stand the test of time. “When drafting an agreement, most young lawyers will try to only provide for the client’s current needs, but only some may probe further to determine whether their agreements can meet changing future circumstances,” he explains. “For example, it may be important to not only discuss current copyright, but also copyright in future works that have yet to be created.”

“I would advise all young lawyers to take the time to ensure that they first have a good understanding of their clients and how their businesses may develop in the future, and to take that into consideration when drafting agreements for them.”

Mr Ng has contributed several IP precedents to LawNet’s repository of commercial precedents, which is available at no extra cost to existing subscribers. Not a subscriber yet? Get a sample of its offerings on us! Download your free IP precedent here*.

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