Imagine this: you own a company that offers software to its customers. In practice, that software is created by a programmer who is employed by your company. As an employer, it is advantageous to be the rightsholder of the copyright in that software. That sounds logical, because as the owner you have made the financial investments required to offer the software and you also bear the business risk. If the programmer were the rightsholder, they could prevent the company from using the software if they were to leave the company for any reason. The Dutch legislator recognises this need and therefore introduced Article 7 of the Dutch Copyright Act (Auteurswet 1912), under which an employer in principle becomes the owner of the copyright in the software. Recently, however, the Court of Justice of the European Union delivered a judgment1 that casts doubt on whether Article 7 of the Copyright Act is still legally valid. In this blog, we discuss the substance of that judgment and its consequences for you as an employer.
The ONB judgment
The judgment of the Court of 6 March 2025 concerned a dispute between the Orchestre National de Belgique (ONB) and musicians employed by the ONB. Prior to that dispute, trade unions for musicians and the ONB had negotiated for years about the level of remuneration the musicians should receive in exchange for neighbouring rights. ‘Neighbouring rights’ are rights that accrue to performing artists, such as musicians and actors. These rights closely resemble copyright, as they grant performing artists the right to decide on the recording, reproduction and broadcasting of a performance.
The negotiations on remuneration reached an impasse, after which the Belgian State issued a Royal Decree setting a fixed remuneration for performing musicians. The trade unions did not agree with this decree and therefore brought the matter before the courts. The Belgian court subsequently referred preliminary questions2 to the Court of Justice. One of those questions concerned the extent to which neighbouring rights can be transferred by law without the prior consent of the musicians.
The Court concluded that such an arrangement is not permitted. This is primarily because neighbouring rights are intended to provide broad protection for the rights of performing artists. The artist must be able to decide independently how to exploit the right in their creation, including with regard to any transfer of that right. In relation to such a transfer, appropriate and proportionate remuneration must be offered, taking into account a balance between the contractual freedom of the artist and third parties and the rights and interests of the artist. The Belgian Royal Decree under which neighbouring rights of performing artists were transferred without prior consent did not survive that test.
Fictional authorship for employers
Although this case concerned neighbouring rights, the judgment may have consequences for Dutch copyright law. This is because the provisions on which the Court ruled stem from European legal rules that also apply to copyright. For that reason, the judgment is considered interesting by Dutch lawyers, who are asking to what extent employer copyright remains tenable. This could mean that, as an employer, you would no longer be the rightsholder of the software created by the programmer.
As mentioned earlier in the introduction, the Dutch Copyright Act contains a provision under which copyright arising in works created by employees accrues to employers. This is referred to as ‘fictional authorship’, meaning that not the actual creator of a work is regarded as the author, but another party.
Article 7 of the Copyright Act may be translated as follows: “If the labour performed in the service of another consists in the creation of certain works of literature, science or art, then, unless otherwise agreed between the parties, the person in whose service the works were created shall be regarded as the author of those works.”
In short, this means that the copyright in the software accrues to you as the employer when a programmer at your company creates software as part of their duties. The creation of the software must therefore fall within the employee’s job description. An employer cannot claim a drawing that the same programmer makes during their lunch break. In theory, it is possible to deviate from this arrangement and, for example, to have all copyright accrue to the employee by contract, but in practice this is very rare.
Exit employer authorship?
At first glance, the ONB judgment therefore appears to have far-reaching implications for Dutch law. One could argue that Article 7 of the Copyright Act, like the Belgian Royal Decree, entails a mandatory transfer of copyright or neighbouring rights. However, the judgment does not appear to be directly applicable to Article 7 of the Copyright Act.
A salient difference between the two regimes lies in the unless clause (“unless otherwise agreed between the parties”) included in the Dutch legislation. Copyright is therefore not transferred from employee to employer as a matter of course. It is possible to deviate from the main rule by contract and, for example, to declare the programmer themselves to be the copyright holder of the software they create. Unlike the Belgian Royal Decree, there is therefore no transfer of copyright without prior consent, even if the practical significance of the unless clause may be limited.
Conclusion
The ONB judgment raises questions about statutory regimes that transfer copyright or neighbouring rights without consent. Although Article 7 of the Copyright Act enables such a transfer, it contains an unless clause that allows for contractual deviation. This distinguishes it from the Belgian system. For the time being, the interests of you as the owner of a software company therefore appear to be safeguarded. For the programmer, this means that during contract negotiations they may attempt to obtain the copyright in their creations after all.
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