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    Copyright in software

    Software is one of the most valuable digital assets many organisations hold, but who owns the copyright is far from self-evident. This page explains when software is protected, who holds the rights, and which contractual risks are at play.

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    Copyright in software: protection, ownership, and contractual risks

    Want a complete overview of the protection, ownership, and contractual risks surrounding software copyright? Download our free factsheet now.

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    When is software protected by copyright?

    Copyright in software arises automatically, without registration or any other formality. The threshold is low in practice: as long as a developer had some creative freedom when writing the code, whether in its structure, architecture, or the solution chosen, protection will generally follow. The software must, however, meet three requirements: an original character, the personal stamp of the author, and perceptibility.

    Who holds the rights in software?

    The general rule is clear: copyright belongs to the author. In practice, however, developers rarely work alone, and important exceptions apply. Where an employee writes software in the course of their employment, the employer is treated as the rights holder (Article 7 Aw). A common misconception is that a client automatically becomes the rights holder when they commission a agency or freelancer. That is not the case: payment is irrelevant under copyright law. Whoever creates the software holds the rights.

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    Licence or assignment: what is the difference?

    Under a licence, the rights holder grants permission to use the software without transferring the copyright itself. An assignment transfers the rights in full to another party. This distinction is crucial: without clear contractual arrangements, the supplier retains the copyright and the client holds only a limited right of use.

    Please note: an assignment is only legally valid if it is recorded in writing in a signed deed. An email or verbal agreement is not sufficient (Article 2(2) Aw).

    Contractual risks: who faces what?

    Employers, clients, developers, and freelancers each face their own risks where proper contractual arrangements have not been made. An employer may be uncertain whether particular software falls within an employee's job description. A client may end up with only a limited right of use. And a developer may unintentionally give up their own reusable building blocks. The right contractual provisions prevent all of these problems.

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    Frequently asked questions about copyright in software

    Does copyright in software arise automatically?

    Yes. Copyright arises automatically at the moment the software is created, without any need for registration or other formalities.

    Does the client hold the rights to software they commission?

    No, not automatically. The general rule is that the author holds the rights. As a starting point, the client acquires only a licence, not ownership, even if they have paid in full. If you want to acquire the rights as a client, this must be recorded explicitly and in writing.

    Does an employer automatically hold the rights to software written by an employee?

    Yes, provided the software was created in the course of the employment relationship and falls within the employee's job description (Article 7 Copyright Act). This does not generally apply to freelancers and self-employed individuals.

    What falls outside the copyright protection of software?

    The programming language, the functionality as such, file formats, and functionally determined UI elements all fall outside the scope of protection. Copyright protects the concrete expression in source code and object code, not the idea or concept behind it.

    Questions about copyright in software?

    We advise organisations at the intersection of intellectual property and digital technology. Whether you need an IP quick scan, help drafting a development agreement, or advice on a dispute over software ownership, our lawyers are here to help.

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