Technology

Who owns the code? IP and industrial property in technology companies

Nextica Law & Tax secures the chain of title over a technology company's core asset: express assignment of code written by freelancers and agencies, the treatment of work created by employees, third-party licences and open-source components, source-code escrow with corporate clients, and registration and defence of the trade mark and the domain. It is the folder requested in a funding round's due diligence, and the one that decides whether there is anything to sell.

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Without an express written assignment, the code you paid for still belongs to the developer who wrote it. It surfaces in due diligence, when there is no time left.

What's included

1. Auditing the chain of title to the code

who wrote it, under what contract, and whether there is an express written assignment for each stretch.

2. Regularising what freelancers and agencies wrote before incorporation, which is the gap that appears in every due diligence.

3. Ownership clauses in employment contracts, so that what is created in the course of the job is clear from day one.

4. An inventory of third-party dependencies and their licences, analysing those that require derivative code to be released.

5. Registering the trade mark and securing the domain and the handles, before the product has a public name.

6. Protecting what is not registered

technical documentation, architecture and algorithms as trade secrets, with reasonable, evidenceable measures.

7. Preparing the intellectual property file the investor will ask for, in order and with the papers signed rather than promised.

THE CODE YOU PAID FOR MAY NOT BE YOURS

It is the classic due diligence finding, and it appears when there is no longer time to fix it without paying for it.

Freelance or agency code with no express written assignment

title does not pass merely because the invoice was paid, and the developer who wrote it remains its owner until a contract says otherwise.

consolidated Intellectual Property Act

Employee code with no explicit clause

the law settles ownership of a program created by an employee in the course of their duties, but the boundary of 'in the course of their duties' is exactly what gets argued about when someone leaves with a side project.

art. 97.4 Intellectual Property Act

Third-party dependencies with unreviewed licences

some open licences require derivative code to be published, and discovering that in due diligence means rewriting the component or renegotiating the price.

Frequently asked questions

I paid an agency to build my product. Is the code mine?

Only if the contract expressly assigns it, with a defined scope, term and territory. Paying an invoice does not by itself transfer the exploitation rights over the software. Where the assignment is missing or incomplete it can be fixed afterwards, but it becomes a negotiation with someone who has already been paid, and it usually has a price. The same applies to the product's designs, copy and images.

We use open-source libraries. Does that create obligations?

It depends on each component's licence and on how it is integrated. Some licences only require attribution; others require derivative work to be released under the same licence, which can be incompatible with selling the product as proprietary software. It is solved with an inventory of components and their licences before the buyer or the investor asks for it, not after.

More frequently asked questions · DERECHO MERCANTIL

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