22 May 2024

Constitutional Court rejects IT industry's appeal against exclusion in new copyright regime

by Elien Verbrugge and Els Van Eenhooge

On 16 May 2024, the Constitutional Court issued a ruling on the alleged discrimination in the reformed copyright regime and its scope, which has been in force since 1 January 2023. In fact, on 26 December 2022, the legislator amended the tax regime for copyrights by no longer referring to Titles 6 and 7 of the Economic Code, which cover computer programs and databases. Some IT companies and software developers had objected to this change, claiming that it violated the principle of equality through alleged discrimination.

However, the Court ruled that there was no discrimination. In other words, the exclusion of income from computer programs from the copyright tax regime is considered reasonable by the Constitutional Court.

The Court noted that the legislature has a wide discretion in tax matters. Moreover, the ruling pointed out that the favourable regime was originally introduced because of the volatile nature of income from artistic activities. The court concluded that the legislator could reasonably assume that the income of authors of literary and artistic works was less uncertain and volatile than that of computer programme developers.

Consequently, the court dismissed the appeals. This means concretely that for software development and related activities, copyrights can no longer be granted under the reformed copyright regime.

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