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Software, copyright or patent

  /    /  Software, copyright or patent

Welcome to Penrose Software and Copyright

Penrose specialises in IT technology law and intellectual property law in the Netherlands. We advise and assist international IT providers, software developers, procurement and investors with drafting and negotiating Dutch law IT contracts. We also assist with conflicts in the context of IT and intellectual property rights in the Netherlands. Hereafter we discuss some of the topics that we encounter on a daily basis.

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There is not always a mutual understanding as to who owns the copyright in relation to developed software. In order to establish who the owner is, various factors are relevant, such as:

  • whether it involves custom or standard software; and
  • whether the software has been developed by employees, or by an independent third party; and
  • whether there is a transfer or licence of intellectual property rights.

The matter becomes even more difficult if the software was developed by more than one party. Who owns the copyright in such event?

Another point to consider is the use of so-called open source software. It is a misunderstanding that open source software is not copyright protected. On the contrary, open source software is also subject to licence terms (e.g. Apache License, General Public License, MIT license). The distinguishing feature of open source licencing is that the source code is published and can be used free of charge. Any developer can make improvements to the open source software, however, often under the condition that those improvements will also be made available open source, in order for others to continue developments.

The difference between a licence and a transfer of copyright is that in the case of a licence, the licensor retains legal ownership of the respective intellectual property rights. The licensee merely acquires the ‘economic ownership’, i.e. the right to (temporarily) use the intellectual property rights, most often limited to a specific purpose. It is important to establish whether a licence is exclusive, temporary, transferable and/or sub-licensable. The conditions may be set out in a licence agreement .


Sale of IP rights

If intellectual property rights are sold and transferred, the legal owner or registered holder thereof changes. The transferor assigns its IP rights to the transferee. The difference between a licence and a transfer of intellectual property rights can be best compared to the difference between sale and lease.

The transfer of IP rights must be in writing. The same applies for the granting of exclusive licenses. It is often mistakenly assumed that placing an order and/or paying an invoice is sufficient for the transfer of developed or created intellectual property rights. Timely obtaining legal advice is therefore important.

More information about IP rights is available here.

At Penrose, our IP/IT lawyers are happy to work with you and answer any questions you may have. Contact details are available here.

Our IT
Chantal Bakermans portret
Attorney at law, Partner
profilepicture Lukas Witsenburg round
Attorney at law, Partner

Information Technology