A company has software developed, pays the invoices and uses the system every day. That does not automatically make it the rightholder in the source code. This can cause problems when the relationship with the developer ends, when the software has to be developed further, or when the supplier becomes insolvent.
So who does hold the copyright? And how do you prevent disputes about using, modifying and transferring your bespoke software? Note the terminology: ownership and copyright are not the same thing in law. You can own the medium and still hold no copyright in the code.
The main rule: copyright vests in the author
Under the main rule of the Dutch Copyright Act, copyright vests in the author of the work. For software that means, in principle, the programmer or developer who wrote the code.
Computer programs and the preparatory material for them, such as design documents, functional specifications and source code under development, may be protected by copyright. That does require the work to be the author's own intellectual creation.
The party paying for the development therefore does not automatically acquire the copyright. Absent further arrangements, the actual author remains the rightholder.
Employees: employer's copyright
An important exception applies to employees. Where an employee develops software in the course of their employment, the employer may be regarded as the author, and therefore as the copyright holder, under Article 7 of the Dutch Copyright Act.
The following circumstances are particularly relevant:
- there is a contract of employment;
- software development forms part of the employee's duties;
- the parties have not expressly agreed otherwise.
A software developer hired to build programs falls within this rule more readily than a system administrator who occasionally writes a script. It is therefore advisable to state clearly in the employment contract and the job description that software development forms part of the employee's duties.
Freelancers and external IT suppliers
Employer's copyright does not automatically apply to freelancers, self-employed contractors and external IT suppliers. They generally work under a contract for services rather than a contract of employment. The copyright then remains, in principle, with the external developer or supplier, unless it is validly transferred to the client.
This can cause problems where:
- the client wants another party to modify the software;
- the supplier stops providing source code;
- the software forms part of a business acquisition;
- the supplier becomes insolvent;
- the client wants to license the software to third parties.
Paying the development costs is not enough in itself. The contract must set out clearly which rights the client acquires.
Assignment or licence?
A client must distinguish between an assignment of copyright and a licence.
A licence may suffice where the client only wants to use the software internally. Anyone who wants to be able to modify, develop, sell or make the software available to third parties is well advised to have those rights expressly included.
New since 1 January 2026: the writing requirement
On 1 January 2026 the Act strengthening copyright contract law (Wet versterking auteurscontractenrecht, Stb. 2025, 352) entered into force, amending Article 2 of the Dutch Copyright Act. Both an assignment of copyright and the grant of an exclusive licence are now subject to a writing requirement: the agreement must be entered into in writing. An assignment clause that appears only in general terms and conditions, or that was agreed orally, therefore offers no certainty.
Commentators differ on the precise relationship between this writing requirement and the former deed requirement, and thus on the role of delivery under Article 3:95 of the Dutch Civil Code. In practice that is easily resolved: record the assignment in a separate written agreement signed by both parties, stating which rights are transferred and at what moment, for instance on delivery or after payment in full. That satisfies every reading.
The Act also has immediate effect: from 1 January 2026 it applies to existing contracts as well, so far as acts after that date are concerned. Ongoing development and maintenance agreements therefore warrant review, particularly where the software is business-critical.
Non-exclusive licences remain form-free and can still arise orally or by implication. That is precisely the risk for clients: without a written arrangement you are often left with no more than an implied, limited licence to use.
Do not forget maintenance, updates and bug fixes
A recurring point of attention is the legal position of maintenance, updates and bug fixes. Record the rights not only in the original software, but also in bug fixes, updates, new releases, documentation, further development and additional modules and interfaces.
In the summary proceedings leading to the judgment of the interim relief judge of the District Court of Rotterdam of 31 May 2024 (ECLI:NL:RBROT:2024:5183), the question arose whether bug fixes gave rise to standalone copyright protection. Following a business transfer in which all assets and the intellectual property rights flowing from them had passed, the other party refused to hand over the source code of bug fixes carried out afterwards. The judge held that adding these bug fixes did not meet the originality requirement, because no creative choices of the author were expressed in them, and ordered the source code to be handed over.
That outcome is not automatically a general rule. It was a provisional assessment in summary proceedings and concerned the specific characteristics of those fixes. A substantial rebuild of a module or a significant extension may well constitute the author's own intellectual creation. The lesson is therefore not that maintenance work is never protected, but that you should not rely on it: regulate the rights in maintenance and further development contractually.
Separately, the law gives the lawful user of software a degree of latitude. Article 45j of the Dutch Copyright Act permits reproduction necessary for the intended use, including the correction of errors, unless otherwise provided by contract. Since IT contracts frequently do provide otherwise, the contractual arrangement remains decisive.
Source code escrow as a continuity measure
For business-critical software, source code escrow can provide an additional safeguard. The source code, documentation and associated data are held by an independent escrow agent and released when a pre-agreed event occurs, for instance:
- insolvency of the supplier;
- prolonged discontinuation of the service;
- the supplier no longer being able or willing to maintain the software;
- another contractually defined release trigger.
Escrow does not replace arrangements about copyright; it supplements them. A deposit is only worth anything if it is also settled how often the source code is updated, how release is determined, and what rights of use and modification you obtain after release. Without that last point you have the code but no right to do anything with it.
Practical checklist for businesses
- Who is the author of the software?
- Is the developer an employee, a freelancer or an external supplier?
- Is the copyright assigned, or do you receive only a licence?
- Is that arrangement recorded in writing and with sufficient specificity?
- At what moment does the assignment take effect?
- Does the arrangement also cover bug fixes, updates and further development?
- May a third party maintain or modify the software?
- Is source code escrow agreed?
- Are the release triggers and the rights after release clearly described?
- Have open source components and their licence terms been mapped separately?
- Has attention been paid to the author's moral rights (Article 25 of the Dutch Copyright Act)?
- Have the IP provisions been checked in the context of an acquisition or merger?
Unclear arrangements can leave you able to use the software but unable to modify, transfer or develop it without permission.
Conclusion
The party paying for bespoke software is not automatically the copyright holder. For employees, employer's copyright may provide the answer. For freelancers and external IT suppliers, by contrast, the desired rights must be arranged expressly and in writing, and since 1 January 2026 the law imposes stricter requirements on how that is done.
Law & More reviews your development, maintenance and escrow agreements, drafts IP clauses that also cover maintenance and further development, and tests existing contracts against the new copyright contract law. If an acquisition is on the horizon or your software is business-critical, have your IP position checked in good time. Please feel free to contact us for a no-obligation discussion.
Frequently asked questions
Below we answer the questions we are asked most often on this subject.
Do I own the software I have paid for?
Not automatically. Copyright vests in principle in the author of the code, not in the party paying for the development. Note the terminology as well: ownership and copyright are not the same thing in law.
Who holds the copyright if my own employee writes the software?
The employer may then be regarded as the author under Article 7 of the Dutch Copyright Act. What matters is that there is a contract of employment, that software development forms part of the employee's duties, and that the parties have not expressly agreed otherwise. Record this in the employment contract and the job description.
Does the same apply to self-employed contractors and external IT suppliers?
No. They generally work under a contract for services, so employer's copyright does not apply. The copyright then remains with the external developer unless it has been validly assigned to you.
What is the difference between an assignment and a licence?
On an assignment, the copyright itself passes to you. Under a licence the author remains the rightholder and you obtain only the agreed rights of use. If you want to be able to modify, develop further or supply the software onward, those powers must be expressly arranged.
What changed on 1 January 2026?
On that date the Act strengthening copyright contract law entered into force, amending Article 2 of the Dutch Copyright Act. Both assignments and exclusive licences are now subject to a writing requirement. The Act also has immediate effect, so it applies to existing contracts as regards acts after that date.
Can an assignment be arranged in my general terms and conditions?
That is not sufficiently certain. Record the assignment in a separate written agreement signed by both parties, setting out which rights pass and at what moment, for instance on delivery or after payment in full.
Can a licence arise orally?
A non-exclusive licence is form-free and can arise orally or even by implication. An exclusive licence must, since 1 January 2026, be granted in writing. For clients the form-free variant is precisely the risk: without a written arrangement you are often left with no more than a limited right of use.
Does new copyright arise in bug fixes?
Often not, but it depends on the circumstances. In summary proceedings before the District Court of Rotterdam on 31 May 2024 (ECLI:NL:RBROT:2024:5183) the judge held that the bug fixes concerned did not meet the originality requirement, because no creative choices were expressed in them. A substantial rebuild or significant extension may well be the author's own intellectual creation, so do not rely on this and settle it contractually.
May I correct errors in the software myself?
Article 45j of the Dutch Copyright Act permits the lawful user to reproduce the software so far as necessary for its intended use, including the correction of errors, unless otherwise provided by contract. Since IT contracts frequently do provide otherwise, the contractual arrangement is decisive in practice.
What is source code escrow and when is it worthwhile?
The source code, documentation and associated data are deposited with an independent escrow agent and released on a pre-agreed event, such as the supplier's insolvency. It is particularly relevant for business-critical software. Also settle how often the deposit is updated and what rights of use and modification you obtain after release.
What should I watch for in an acquisition?
Check whether the copyright in the software has actually been assigned and whether that assignment meets the formal requirements, and whether maintenance, updates and further development are covered as well. Map open source components and their licence terms, and pay attention to the moral rights under Article 25 of the Dutch Copyright Act.
Do you have a dispute with an IT supplier, or would you like an IT contract reviewed? Our IT lawyers are happy to help.
