The company that pays for bespoke software does not automatically hold the copyright in it: in principle, the copyright belongs to the author who wrote the code. The main exception is software written by an employee as part of his job, where the employer counts as the author; with freelancers and external IT suppliers, the client only acquires rights if they are expressly transferred or licensed, and since 1 January 2026 such an agreement must be in writing.
Ownership and copyright are different things. You can own the server and the copy of the software and still have no right to modify or sell the code. This article explains who holds the rights, how to acquire them, what changed in 2026, and what clients and developers should check.
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Who holds the copyright in software?
In principle, the author: the programmer or developer who wrote the code. Computer programs and their preparatory material, such as design documents and functional specifications, are protected works under Article 10(1)(12) of the Dutch Copyright Act (Auteurswet).
Protection only applies if the code is the author’s own intellectual creation, reflecting his creative choices. Paying for the development does not change who the author is. Without further arrangements, the developer remains the rightholder.
What if your own employee writes the software?
Then the employer is regarded as the author, unless the parties have agreed otherwise (Article 7 Copyright Act). This applies where the work done in the employer’s service consists of making that type of work.
A software developer hired to build programs clearly falls under this rule; a system administrator who occasionally writes a script less clearly. Describe software development expressly in the employment contract and job description. A company can also count as the author if it publishes a work as its own without naming a natural person as the author (Article 8 Copyright Act).
What about freelancers and external IT suppliers?
Article 7 does not apply to freelancers and IT suppliers, because they work under a contract for services, not an employment contract. The copyright stays with the developer or supplier unless it is validly transferred to the client.
This becomes a problem when the client wants another party to modify the software, when the supplier stops providing the source code, when the supplier goes bankrupt, when the software is part of a business sale, or when the client wants to license it to others.
Should you take an assignment or a licence?
With an assignment (overdracht), the copyright itself passes to you. With a licence, the developer remains the rightholder and you only receive the agreed rights of use (Article 2(2) Copyright Act).
A non-exclusive licence may be enough if you only use the software internally. If you want to modify, develop further, sell or make the software available to third parties, you need an assignment or a licence that expressly includes those rights.
What changed on 1 January 2026?
The Act strengthening copyright contract law (Wet versterking auteurscontractenrecht, Stb. 2025, 352) amended Article 2(3) of the Copyright Act. An agreement transferring copyright, wholly or partly, or granting an exclusive licence must now be entered into in writing.
For the transfer itself, delivery by a deed intended for that purpose is still required under Article 3:95 of the Dutch Civil Code (BW), as Article 2(3) expressly states. Where the author is a natural person, the transfer or exclusive licence only covers the powers expressly mentioned in the agreement or necessarily following from its nature; this does not apply to employers and companies that count as author under Articles 7 and 8.
In practice: record the assignment in a separate written agreement signed by both parties, stating which rights pass and when, for example on delivery or after full payment. A clause in general terms or an oral agreement offers no certainty. The amending act contains transitional rules, so have long-running development and maintenance contracts checked.
A non-exclusive licence remains free of form and can arise orally or tacitly. That is the risk for clients: without a written arrangement, you may only have an implied, limited right of use.
Who holds the rights in maintenance, updates and bug fixes?
That depends on whether the change itself is an original creation, so arrange it in the contract. Cover not only the original software but also bug fixes, updates, new releases, documentation, further development, extra modules and interfaces.
In summary proceedings, the District Court of Rotterdam ruled on 31 May 2024 (ECLI:NL:RBROT:2024:5183) on bug fixes made after a business transfer in which the software rights had passed to the buyer. The judge found it not plausible that the bug fixes were original works, because no personal creative choices were shown, and ordered the party that had done the work under a service contract to hand over the source code of the fixes.
That was a provisional ruling on specific facts. A substantial rebuild of a module or a significant extension can well be an original creation. Do not rely on the ruling; settle the rights in maintenance and further development in writing.
May you correct errors in the software yourself?
Partly. Under Article 45j of the Copyright Act, the lawful acquirer of software may make reproductions necessary for its intended use, unless otherwise agreed. Reproduction for loading, displaying and correcting errors cannot be prohibited by contract.
In practice, correcting errors usually requires access to the source code. The right to correct errors is of little use if you only have the compiled version, so arrange access to the source code as well.
How does source code escrow help?
With escrow, the source code, documentation and related data are deposited with an independent escrow agent and released when an agreed event occurs, such as the supplier’s bankruptcy or the supplier no longer maintaining the software.
Escrow supplements the copyright arrangements but does not replace them. Agree how often the deposit is updated, how release is determined and which rights of use and modification you receive after release; without that last point, you have the code but no right to work with it.
What should you check as a client?
- Is the developer an employee, a freelancer or an external supplier?
- Do you receive an assignment or a licence, and is that recorded in a written agreement signed by both parties?
- When does the assignment take effect, and has delivery by deed been arranged?
- Does the arrangement also cover bug fixes, updates and further development?
- May a third party maintain or modify the software, and do you have access to the source code or an escrow arrangement?
- Have open source components and their licence terms been mapped, for example before an acquisition?
What should you check as a developer or IT supplier?
- Which rights do you want to keep, for example in reusable libraries and tools, and is that recorded?
- Does the contract distinguish between client-specific code and your own standard components?
- Does the assignment only take effect after full payment?
- Are your employees’ employment contracts clear that software development is part of their duties?
- Have you obtained written rights from freelancers you engage, so that you can pass them on to your client?
- Have you considered the author’s moral rights, which remain with the author even after transfer (Article 25 Copyright Act)?
What can we do for you with software copyright?
Our IT lawyers advise clients and developers on rights in bespoke software. We can:
- review development, maintenance and escrow agreements against Article 2 of the Copyright Act as amended on 1 January 2026;
- draft an assignment agreement and deed that also covers maintenance and further development;
- draft licence clauses that set out exactly which rights of use and modification you receive or grant;
- check the IP position of software in an acquisition or due diligence;
- demand the source code from a supplier, or defend a claim for it, including in summary proceedings.
Read more about what an IT lawyer does.
Summary
- Copyright in bespoke software belongs to the author, not automatically to the party that pays.
- For employees, the employer counts as the author (Article 7 Copyright Act), unless agreed otherwise.
- From freelancers and IT suppliers, you only acquire rights by express assignment or licence.
- Since 1 January 2026, assignments and exclusive licences must be agreed in writing; transfer still requires a deed.
- Arrange rights in bug fixes, updates and further development, and consider source code escrow.
Frequently asked questions
Do I own the software I have paid for?
Not automatically. Copyright belongs in principle to the author of the code, not to the party that pays for it. You only acquire rights through an assignment or licence, unless the software was written by your own employee as part of his job.
Who holds the copyright if my employee writes the software?
The employer, if writing software is part of the employee’s duties and the parties have not agreed otherwise (Article 7 Copyright Act). Record this in the employment contract and job description.
Can an assignment be arranged in general terms and conditions?
That offers no certainty. Record the assignment in a separate written agreement signed by both parties, stating which rights pass and when.
Can a licence arise orally?
A non-exclusive licence can arise orally or tacitly. An exclusive licence must be agreed in writing. Without a written arrangement, a client is often left with a limited right of use.
