Copyright, computer programs and company manager: no presumption of assignment
I have already spoken to you about the issue of copyright assignments on numerous occasions (especially here and there ). Each time, it was a question of the assignment of rights in the presence of employees (employment contract) or freelancers (order contract).
I have also already told you about copyright protection for software, computer programs, web and mobile applications (especially here and there).
Today I would like to talk to you about a subject related to these two issues, but not yet addressed:
- when a company manager creates a computer program as part of his company’s activities, who owns the copyright?
- to the manager of the company or to the company?
- is there a need for an assignment contract in favor of the company or, on the contrary, is there a presumption of assignment in favor of the company?
The judgment of the Court of Cassation C.09.0226.N of June 3, 2010 provides a very clear answer on this subject.
The facts leading to the judgment of the Court of Cassation C.09.0226.N of 3 June 2010
The statutory manager of a private limited liability company (“SPRL”) creates software within the framework of the activities of this company.
This manager has not concluded an employment contract with the SPRL; nor did he enter into a software rights assignment contract with it.
The SPRL goes bankrupt and a dispute arises between the manager of the SPRL (now bankrupt) and the curator as well as the potential buyers.
This dispute concerns the question of whether the rights (in particular the copyright) on the software created by the manager, within the framework of the activities of this SPRL, still belong to the manager or if, on the contrary, these rights belong to the SPRL and are therefore part of its heritage.
The manager invokes the fact that he is the author of the software and that he has not, at any time, transferred his rights to his company (absence of a copyright transfer contract).
However, copyright belongs to the natural person who creates the work ( current article XI.170 CDE ) and remains the property of this natural person as long as an assignment has not been formalized (assignment which, vis – vis-à-vis the author, must be written) ( current article XI.167 CDE ).
On the other side of the bar, the manager’s opponents invoke the fact that in terms of software a specific rule has been provided for, namely a presumption of automatic transfer to the benefit of the employer for software created by an employee:
“Unless otherwise stipulated in the contract or statute, only the employer is deemed to be the assignee of the economic rights relating to computer programs created by one or more employees or agents in the exercise of their functions or following the instructions of their employer” ( current article XI.296 CDE ) .
By virtue of this presumption, the opponents of the manager consider that the SPRL is automatically the assignee of the copyright in the software created by its manager within the framework of the activity of this SPRL.
The manager disputes the application of this presumption of transfer as regards computer programs since he is not an employee of the SPRL, but independent; no employment contract having been concluded between his SPRL and himself.
Decisions at first instance and on appeal
The manager is dismissed from his position at first instance.
The manager is similarly dismissed on appeal.
The Ghent Court of Appeal considers in particular that the presumption of transfer provided for in the field of software applies not only to employees but also to statutory managers of companies , so that in this case it must be considered that an automatic transfer copyright of the manager has taken place in favor of the SPRL (now bankrupt).
The manager lodges an appeal in cassation.
The decision of the Court of Cassation
In its judgment C.09.0226.N of June 3, 2010, the Court of Cassation ruled against the Ghent Court of Appeal and quashed the judgment pronounced by the latter.
The Court of Cassation considers in particular that the presumption of transfer provided for in the field of software applies:
- to employees or agents only in the exercise of their functions ;
- and not to company managers , even if those managers create the software as part of the company’s activities. and for more check socialfollowrs
The reasoning of the Court of Cassation is as follows:
“1. Pursuant to Article 3, § 3, paragraph 1, of the Law of 30 June 1994 on copyright and related rights, when works are created by an author in execution of a contract of employment or status, economic rights can be transferred to the employer provided that the transfer of rights is expressly provided for and that the creation of the work falls within the scope of the contract or the status.
By virtue of article 3 of the law of June 30, 1994 transposing into Belgian law the European directive of May 14, 1991 on the legal protection of computer programs, unless a contractual or statutory provision to the contrary, only the employer is presumed to be the assignee of the economic rights relating to computer programs created by one or more employees or agents in the performance of their duties or following the instructions of their employer.
2. It follows from these provisions that the presumption that the employer is the assignee of economic rights, established in the field of computer programs, derogates from the general rule applicable in matters of copyright, which requires that an assignment of economic rights to the employer is expressly provided for.
The presumption is only applicable for economic rights relating to computer programs created by employees or agents in the exercise of their functions or according to the instructions of their employer and cannot be extended to economic rights relating to programs. computer created by the statutory manager of a commercial company which does not have the quality of employee then of an employment contract concluded with this company.
3. The appeal judges note that the parties do not dispute that the applicant was not an employee within the meaning of Belgian labor law. They consider that the presumption established by article 3 of the law of June 30, 1994 transposing into Belgian law the European directive of May 14, 1991 concerning the legal protection of computer programs applies to the statutory manager, so that he There was an automatic transfer of economic rights for the benefit of the company of which the applicant was the manager.
4. By ruling thus, the appellate judges violate the legal provision mentioned in consideration 3. To this extent, the plea, in this branch, is well-founded ”.
- As is the case with all works, the copyright in software, a computer program, or a web / mobile application belongs to the natural person who (originally) created the software, the computer program. or the web / mobile application;
- You can find copyright service near me to resolve all the copyright issues
- An assignment of copyright is, therefore, necessary for a third party to be vested with copyright in the software, the computer program or the web / mobile application (assignment which must, for proof purposes, be made in writing);
- Exception: if we are in the context of an employment relationship (employment contract/employment contract), the employer will benefit, thanks to a legal presumption, from an automatic transfer of copyright on the software, the computer program or web / mobile application, created by an employee (in the performance of his duties or on the instructions of this employer);
- This exception for the benefit of the employer is interpreted restrictively and applies only and exclusively in the event of an employment relationship (Cass., June 3, 2010, C.09.0226.N); conversely, this exception does not apply in the presence of a self-employed person and/or an order contract with a self-employed person (an employee and a work/employment contract are required); So it is not because you order software, a computer program or a web / mobile application from an agency, a freelance, etc., that you will automatically have the rights to this software, this program, or this application;
- This exception (which is interpreted restrictively) therefore does not allow a company to obtain the copyright in any software, program, or web / mobile application, created by its or one its manager (s) or one of its bodies (except, where applicable, if this manager or body is also an employee of the said company); it is, therefore, fundamental to expressly and in writing settle the question of the copyright of the manager/body that has created software, a program, or a web / mobile application within the framework of the activities of his company.