Copyright: what to retain from the 2015 SDA report

The Service of Advance Rulings (hereinafter the SDA) has published its Annual report 2015. One point is devoted to requests for prefiling that did not lead to a decision. With regards to the copyright tax regime, three situations are described: The first concerns a company director and author of various brochures relating to the projects that he carried out in the past. The company wants to use these brochures to promote its activities. The author is prepared to authorise such use subject to the payment of a consideration set at 3% of the turnover of the company. The SDA, after examining the work, estimated that the latter was not protected by copyright by reason of its lack of originality. It is difficult to assess the position of the SDA on the question of the originality without examining the work. Nevertheless, it seems useful to recall that the work is protected by copyright if it bears the mark of the personality of its author, that is if the latter has been able to make free creative choices. Jurisprudence is particularly favourable to the protection of works. In addition, it should be emphasized that the SDA questioned the necessity to acquire the property rights for the exercise of a professional activity. One can legitimately wonder about such a question once the tax administration is not in a position to make a judgement about the opportune nature of a professional expense. Furthermore, it is obvious that the use of a work protected by copyright is subject to the authorisation of the author. It is therefore of no importance whether this use is necessary or not necessary for the exercise of a professional activity. The second situation considered by the SDA relates to a consultant carrying out his business through a company. The position of the SDA can be put in parallel against that argued by the lawyers. The SDA refused the application of the copyright tax system as the end customer was not interested in the acquisition of rights. However, such a position is not justifiable in the light of the legal text. The SDA added a condition to the law by requiring that the rights acquired by the company be transferred on, wholly or partially, to a third party. For the third situation, relating to interior designers, the SDA confirmed its earlier position according to which it is only in very exceptional and individual cases, where there would be a question of a recognisable, original style that is personal to the designer that the copyright tax regime is applicable. We can only beg to differ in the face of such a position. As outlined above, the concept of originality is interpreted in favour of the author in such a way that s/her can benefit from a high level of protection.