Copyright and Lawyers: Belgium's Court of Cassation

The legal framework

Under Book XI of the Code of Economic Law, an original work is protected by copyright from the moment it is created, without registration. Originality means that the work expresses the author's own intellectual creation, shown through free and creative choices. The author is the natural person who made the work. The economic rights, for example to reproduce and communicate it, belong to the author unless transferred, and a transfer or licence is interpreted restrictively.

The debate on lawyers has always been whether their writing is original at all. Pleadings, opinions and contracts are shaped by statutes, case law, facts and professional duties. Some Belgian courts concluded that these constraints leave a lawyer too little room for creative choices, and that lawyers therefore normally produce nothing a copyright can attach to. The point mattered in practice because copyright income used to be taxed as movable income at a low rate.

The Court of Cassation, 24 March 2023

In a judgment of 24 March 2023 (case F.21.0052.N), the Court of Cassation quashed a decision of the Ghent Court of Appeal that had taken the position that lawyers normally do not produce protectable works. The Court held that a lawyer, like any author, can enjoy copyright for original writings. Legal rules, the facts of the case and professional ethics do not in themselves prevent a lawyer from making free and creative choices in wording, structure and the combination of arguments. The decision is consistent with an earlier ruling of the Court, which had accepted that protection is not excluded in principle but requires adequate proof of originality.

Two points follow. First, the judgment does not say that every legal text is protected. The lawyer must show originality in the specific work. Second, the tax effect is limited: the case was decided under the regime that applied before the 2023 reform, and commentators doubt whether the same reasoning would carry a lawyer into the reformed regime, given the aims of the reform.

Ownership and use of legal work product

Even where protection exists, the legal question is who may use the text and for what. A client who pays a fee does not receive the copyright. The client receives at least the right to use the work for the purpose for which it was commissioned, and the scope beyond that depends on the engagement. For employed lawyers, rights in works made under an employment contract do not move to the employer automatically unless the contract says so.

In practice

A Brussels start-up asks its law firm for a memorandum on its data licensing model. It later hands the memorandum to a second adviser as the basis for a new opinion, and attaches it to an investor data room. Whether this is within the client's licence depends on the engagement letter. A letter that states that the client may use the memorandum internally and share it with advisers and investors for the transaction, avoids the issue.

A second scenario arises in a sale of a company. The target's legal opinions and due diligence reports sit in the data room. The buyer wants to rely on them after closing, but the target only has a licence, not an assignment. The parties should address the use of such documents in the sale agreement or obtain a licence extension from the author.

A third scenario: a lawyer who also publishes articles and teaching materials wants to know whether she can use the 15% regime for that income. Cassation's judgment answers only the threshold question of protection. The conditions of the reformed regime, including the limits on which categories of creators qualify, still apply, and she should take tax advice on her situation.

For firms and clients, the practical lesson is to put the scope of use in writing. Our Document Studio includes clauses for the use and transfer of work product, and our portfolio platform keeps a register of copyright works and their status.

Frequently asked questions

Does every legal document qualify for copyright?

No. Routine documents, standard letters and texts determined by prescribed formats may lack the necessary originality. A bespoke opinion or a carefully structured memorandum is more likely to qualify.

Does a client own the legal advice it pays for?

Not automatically. The client has at least the right to use it for the purpose of the engagement. Wider use, such as sharing with third parties or republishing, should be agreed.

What should an engagement letter say?

Whether the firm keeps the copyright, the purpose, territory and duration of the client's licence, whether the client may share the work with other advisers or investors, and whether sub-licensing is allowed.

Can a lawyer use the copyright tax regime?

The judgment confirms that protection is possible. Whether income qualifies depends on the current conditions of the regime, which should be checked per case.

How this connects

For the tax rules, see The Belgian Tax Regime for Copyrights and our copyright tax regime service. Contract clauses on the use of work product can be prepared with our Document Studio.