Belgian copyright law, codified in Book XI of the Code of Economic Law (CEL), grants the author of an original work the exclusive right to reproduce, distribute, communicate, and adapt that work. The author is the natural person who created the work; legal persons cannot be original authors under Belgian law. This principle has significant practical consequences for professional services: lawyers, consultants, designers, and other professionals who produce written work products do so as the natural-person authors of those works.
The practical question that arises frequently in professional contexts is who owns the copyright in work produced in the course of employment or commissioned work. Belgian law distinguishes between employees and independent contractors. For employees, Article XI.170 CEL provides that copyright in works created in the course of employment is automatically transferred to the employer, subject to the contract of employment and provided the work was created within the normal scope of employment duties. For independent contractors, no such automatic transfer exists: copyright remains with the contractor unless explicitly assigned by written agreement.
The Court of Cassation's ruling of 17 November 2022 addressed a fundamental question in the application of copyright law to legal work products: whether a lawyer's legal memoranda, pleadings, and other work products created in the course of their professional mandate can be subject to copyright, and if so, what consequences follow from the client's right to use those work products.
The Court confirmed that legal work products, including legal opinions, procedural documents, and other original written products of legal practice, can qualify as copyrighted works under Belgian law, provided they meet the originality threshold (the work reflects the author's own intellectual creation). The Court further addressed the scope of the licence implied by the lawyer-client relationship: while a client who commissions legal work receives a licence to use that work for the purpose for which it was commissioned, this implied licence does not extend to uses beyond the original mandate. A client who uses a lawyer's legal opinion for purposes beyond the original engagement (sharing it with third parties, republishing it, or using it as a basis for further work by other advisors) may require an explicit authorisation from the author-lawyer.
The ruling has practical consequences for both law firms and their clients. For law firms, it reinforces the importance of addressing copyright ownership and licensing terms in engagement letters: clear provisions about the scope of the client's licence to use the work product, the retention of copyright by the author-lawyer, and any limitations on the client's ability to share or repurpose the work reduce the risk of disputes about the extent of the client's rights after the engagement ends.
For clients, the ruling clarifies that the payment of legal fees does not transfer ownership of the copyright in the resulting work product. A client who wishes to obtain a full assignment of copyright (for example, to freely adapt or republish a legal analysis) must negotiate this explicitly. Absent an assignment, the client has a licence that is limited in scope to the original purpose of the engagement.
Not necessarily. Copyright protection requires that the work meets the originality threshold: it must reflect the author's own intellectual creation and bear the imprint of the author's personality. Routine standardised documents, template letters, or work that is entirely determined by technical constraints may not meet this threshold. In practice, a substantive legal opinion, a bespoke contractual clause, a detailed legal memorandum, or an original set of pleadings will typically qualify. Routine correspondence, filing confirmations, and procedural documents produced entirely according to prescribed formats are less likely to qualify.
Engagement letters should address whether the law firm retains copyright in the work product, the scope of the client's licence to use the work product (purpose, territory, exclusivity, duration), whether the client may share the work product with third parties and on what terms, and whether the client may use the work product as a basis for further work by other advisors. A clear engagement letter provision avoids ambiguity about the scope of the client's rights and reduces the risk of copyright disputes at the end of or after the engagement.
Only if the client holds the copyright (which requires a written assignment from the lawyer) or if the terms of the client's licence explicitly permit assignment. Absent an assignment to the client and an explicit provision permitting sub-licensing or assignment, the client cannot transfer to a third party rights that the client does not itself hold. This is a relevant consideration in M&A transactions where the target's legal documentation (legal opinions, due diligence reports, legal memos) may be subject to copyright that was never assigned to the target.
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