Copyright in software is the exclusive right of the author to reproduce and communicate a computer program. Protection covers the source code, the object code and the preparatory design material. The underlying ideas, algorithms and functionality are expressly excluded.
Legal basis
Article 10(1)(12) of the Dutch Copyright Act lists computer programs with their preparatory material as protected works. Articles 45h to 45n contain the special rules, which derive from Software Directive 2009/24/EC. They set out the rights of the lawful acquirer: loading and running the program, making a back-up copy, studying it, and, on strict conditions, decompiling it to achieve interoperability. Article 7 of the Copyright Act provides that copyright in software written by an employee in the course of employment vests in the employer. That does not apply to contractors: there the right stays with the author unless it has been assigned in writing.
How it works in practice
No registration or deposit is needed; the right arises automatically on creation. The practical question is almost never whether copyright exists but who holds it and what exactly the customer receives. For bespoke development that is a choice between assignment by deed and a licence of defined scope. With open source the licence sets the rules, and some licences require derivative code to be released. In acquisitions, the provenance of the code is a fixed item on the due diligence list.
Where it goes wrong
The most common error is assuming that whoever pays becomes the owner. Without a written deed of assignment the external developer keeps the copyright and the client has at best an implied licence of uncertain scope. A second problem is uncontrolled reuse of open source, where a licence condition infects the company’s own code. A third is the absence of any arrangement about further development: who may modify the code if the supplier stops?
Related terms
This term connects to source code escrow, which addresses continuity, to the database right covering the data rather than the code, and to the SaaS agreement, where the customer receives no copy at all.
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