Who is responsible for proving that a lawyer’s writings are protected by copyright?

A lawyer who reports part of his fees as royalties and thus benefits from the favorable personal income tax regime will, sooner or later, be asked by the tax authorities to prove that his legal texts are protected by copyright. The question of who bears the burden of proof is at the heart of a judgment handed down by the Court of First Instance in Liège, Liège Division, on January 12, 2026. According to the court, the tax authorities must merely establish a prima facie case that the work is not original. It is then up to the taxpayer to identify, within their own texts, exactly what constitutes the original content. The attorney in this case succeeded in doing so, and the disputed tax assessments were set aside.

The facts

The petitioner in this case is an attorney. In January 2016, he entered into a collaboration and assignment agreement with the law firm where he works, under which he assigned the economic rights to his works to the firm. That agreement entitles him to 4 percent of the gross fee in return. He reported this compensation on his personal income tax return as income from movable property and paid the applicable withholding tax.

The tax authorities reclassified that income for the 2020 and 2021 tax years entirely as revenue: 12,006.42 EUR and 11,719.71 EUR were transferred from the code for copyrights to the code for profits and revenue. During the appeal phase, the petitioner submitted a list of works. The General Counsel then accepted the publisher’s copyrights and those for academic files, but not the compensation for client files.

The issue before the court was therefore limited but one of principle: Do a lawyer’s ordinary case files—including legal opinions, briefs, contracts, and letters—constitute works whose transfer is subject to the tax regime for copyrights?

The ruling

The burden of proof regarding the originality of the writings

The petitioner argued that Article 17, § 1, 5° of the Income Tax Code of 1992 (WIB 92) is not an exception, so that the tax authorities seeking to reclassify reported income from movable property must themselves demonstrate that the transaction does not constitute a transfer of copyrights. The court rejects this argument. According to the court, the special tax rules of evidence cannot exempt a taxpayer from proving that he is the author of a protected work once the existence of that work is reasonably disputed.

In this regard, the court relies on Book 8 of the Civil Code (BW), which also applies in tax disputes and requires all parties to cooperate in the presentation of evidence. Article 8.6 of the BW allows the party who must prove a negative fact to be satisfied with the probability thereof. Thus, if the tax authorities plausibly allege the absence of a protected work, the taxpayer must identify which elements in his texts express his personality. Without that step, the court held, a rebuttable presumption would arise that whoever claims to be the author actually is the author, and the burden of proof regarding originality in tax matters would be lighter than under general law.

The Authenticity of the Submitted Legal Documents

For the substantive test, the court adopts the standard set by the Court of Cassation: the decisive factor is whether the author was able to make free and creative choices regarding word selection, arrangement, and combination (Supreme Court, March 24, 2023, F.21.0052.N). That a lawyer holds office pursuant to Article 444 of the Judicial Code (Ger.W.) within a legal and ethical framework does not preclude that freedom of choice. However, protection is not automatic: it applies only to certain writings, and that requires a case-by-case assessment.

Applying this to the examples presented, the court finds that the petitioner constructs arguments in his pleadings to convince the opposing party or the court; that the texts are not merely informative and are not entirely dictated by legal rules, that he does not paraphrase the law but summarizes it, illustrates it with concrete examples, and adds his own perspective, and that certain digressions and comparisons are characteristic of this author. The decisive factor is the finding that he does not merely follow existing templates for deeds, contracts, pleadings, letters, legal opinions, and clauses. The court concludes that the petitioner creates protected works.

The Transfer of Specified Works and the Lump-Sum Compensation

The administration argued that the agreement did not precisely identify the work. According to the court, the tax authorities are thereby imposing a condition that the law does not require: Article XI.167, § 1 of the Code of Economic Law (WER) does not require that the transfer relate to individually identified works, but only that the works be identifiable. The fact that a work is created in the course of a profession does not affect its classification either; otherwise, a professional writer or sculptor would also lose their status as an author.

The flat-rate fee also passes the test. According to the court, a percentage of the gross fee is consistent with tax law, precisely because it takes into account the fact that not every service provided by an attorney constitutes protected work. The fact that the percentage has changed slightly over the course of the attorney’s career does not alter this. The court concludes that the conditions of Article 17, § 1, 5° of the WIB 92 have been met, sets aside the tax assessments, and orders the Belgian State to bear the costs.

Legal analysis and interpretation

The same proof problem, two approaches, and two outcomes

The most striking aspect of this ruling is not what the court says about copyright, but how it allocates the burden of proof. A good half year earlier, the Antwerp Court of Appeals had taken a different approach to a similar case. That court started from the presumption that a timely filing was correct and thus placed the burden of proof on the tax authorities, but then ruled that the tax authorities had met that burden as soon as it became clear that only the assignment agreement had been submitted during the assessment phase (Antwerp Court of Appeal, May 20, 2025, 2023/AR/1618).

The difference in the starting point is theoretical; the difference in the outcome is not. In the Antwerp proceedings, the attorney stumbled over his own documents: a selection of seven works for a single tax year was insufficient, as were a plagiarism check and a statement from a fellow attorney, and the ratio between those seven works and 15 percent of revenue was untenable. In the proceedings in Liège, however, the examples presented were convincing. The starting point therefore differs, but the outcome does not: both judges base their decisions on the specific evidence presented and not on whether a lawyer generally creates protected works.

That convergence also explains why the Supreme Court ruling of March 24, 2023, resolved fewer issues than hoped. The Supreme Court merely prohibited the categorical exclusion of an entire professional group. Anyone who cannot identify their work by tax year will still have their claim denied, based on a factual ground that remains beyond the scope of cassation review. That was also the reason why a previous appeal to the Court of Cassation in another similar case was dismissed (Supreme Court, June 25, 2020, F.19.0052.N).

A third condition that is not specified in the law

The court derives three cumulative conditions from Article 17, § 1, 5° of the WIB 92: a protected work, a transfer for valuable consideration for the purpose of exploitation, and an implied third condition that the financial terms are in line with market conditions. It does not derive this third condition from the text of the law, but from legal doctrine (S. Watelet, Taxation of Copyright and Related Rights, Anthemis, 2021, p. 137).

Later in the same judgment, the court criticizes the administration precisely for adding a condition that is not provided for by law. That criticism undermines its own reasoning. The version of Article 17, § 1, 5° of the WIB 92 that applied to this dispute referred only to income from the assignment or licensing of copyrights. It said nothing about exploitation, and certainly nothing about price. Both of these requirements, in fact, stem from the new regulations. Only since January 1, 2023, has the law required that the transfer be made with a view to exploitation or actual use. The court interprets that condition—along with a price test that does not even appear in the new text—as being contained in an older provision that did not address it. For the taxpayer, this is no minor detail: these are two additional hurdles in a case involving tax assessment years for which the law did not impose them.

Why the administration could not rely on the contract

The finding that a transfer may relate to specific works is correct. There is a second, even stronger reason why the administration’s objection could not succeed, and that reason is not mentioned in the judgment.

The specification requirement of Article XI.167, § 1 WER—which stipulates that the compensation, scope, and duration must be expressly defined for each mode of exploitation, that provisions regarding copyright must be interpreted restrictively, and that contracts with respect to the author must be evidenced in writing—exists solely for the protection of the author. If such a requirement is disregarded, the provision is vitiated by a relative nullity that only the author may invoke. The tax authorities are not a party to that agreement and therefore cannot rely on it to conclude that no copyrights have been transferred. The fact that, according to the petitioner, the agreement was amended orally during the course of his career does not work against him for the same reason.

Specifically, what does this mean?

For anyone defending a case covering the years through 2022. The disputes over the old regulations are still in full swing, and this ruling shows where they will be resolved. Submit an inventory for each tax year, not a single agreement containing a general list of document types. For each work, indicate which elements were chosen freely and creatively: the structure, the wording, your own summary of the law, the comparisons, and the examples. And prove that the work is your own, because in the Antwerp proceedings, the case also fell apart on the question of whether the texts actually belonged to the taxpayer himself.

For those who are implementing the regime today. Since the reform that took effect on January 1, 2023, the discussion has shifted. In addition to a protected work, an artwork certificate is now required, or, in the absence thereof, a transfer or license to a third party for the purpose of communication to the public, public performance, or reproduction. Furthermore, Article 37 of WIB 92 imposes a double limit on the regime: the royalty payment may not exceed 30 percent of the total remuneration, and an indexed absolute ceiling applies. For legal documents prepared by an attorney that remain within the firm, access to the regime has thus become much more limited than this ruling on the old regime would suggest. Anyone seeking certainty on this matter before establishing a compensation model would be well advised to seek assistance from a lawyer specializing in copyright law and tax law.

For software developers and IT companies. The 2023 reform excluded income related to computer programs, and the Constitutional Court rejected the appeals against that exclusion (GwH May 16, 2024, 52/2024). That situation has since been reversed: due to the Act of July 15, 2026 Article 17, § 1, 5° of the WIB 92 once again refers to the computer programs specified in Articles XI.294 and XI.295 of the WER for income paid or awarded on or after January 1, 2026. For those who software As the law evolves, the reasoning in this ruling will therefore become directly relevant starting in 2026, with the difference that, in the case of code, the free and creative choices must be demonstrated in the structure and design, rather than in the choice of words.

Frequently asked questions (FAQ)

Can a lawyer claim copyright on his advice and conclusions?
Yes, but not automatically and not in every case. The Court of Cassation has held that neither the law nor the code of professional conduct prevents a lawyer from expressing his or her personality in certain written documents. Each written document must be assessed individually against the originality requirement. Form letters and documents that merely follow a template do not meet that threshold.

Who is responsible for proving that a text is original: the tax authorities or the taxpayer?
Case law is divided on this issue in terms of its underlying principle, but not in terms of its practical outcome. According to the Court of First Instance in Liège, it is sufficient for the tax authorities to establish a prima facie case that a work is not protected, after which the taxpayer must present specific evidence. In practice, therefore, anyone invoking this protection must be able to present and explain their works.

Does the favorable tax regime for copyrights still apply to legal writings today?
That is much less clear-cut than for income through 2022. The current Article 17, § 1, 5° of the WIB 92 requires a work of art certificate or a transfer to a third party for the purpose of communication to the public, public performance, or reproduction, and Article 37 of the WIB 92 adds a proportionality limit and a ceiling to that. Each design must therefore be assessed against the current text, not against case law pertaining to previous years.

Conclusion

This ruling confirms that professional writings in Belgium may be protected by copyright, and that a lump-sum payment for quantifiable works can pass the tax test. At the same time, the ruling highlights what really matters: not whether a lawyer creates copyright-protected works, but rather the documents a lawyer can submit for a single tax year. Anyone who wishes to retain the compensation should gather their evidence before the first request for information is made and ensure their approach complies with the regulations as they currently stand under Belgian tax law, including the conditions that have been in effect since 2023 and 2026.