You paid a developer, whether a freelancer or an agency, to build your website, your app or your business software. Without a signed assignment of rights, the legal answer often comes as a surprise: the developer keeps the copyright in the code, not you, even after full payment. You may use the software in accordance with its intended purpose, and even correct its errors (Article L.122-6-1 of the French Intellectual Property Code), but you may not freely develop it further or exploit it beyond the agreed use.
Paying is not enough to become the owner
Under French and Tunisian law alike, the author of a creation, including a computer program, holds the rights by the mere fact of its creation: Article L.111-1 of the French Intellectual Property Code in France; Law No. 94-36 of 24 February 1994 on literary and artistic property, as amended by Law No. 2009-33 of 23 June 2009, in Tunisia. Paying for the service does not transfer those rights.
Under French law, an automatic transfer exists only in favour of the employer, for software created by employees in the course of their duties (Article L.113-9 of the French Intellectual Property Code). An independent developer, a freelancer or an agency therefore keeps the rights in the code it produces for you, unless there is a written assignment.
What it can cost you in practice
- You cannot have your website or app developed further by another provider without a risk of infringement.
- The developer may reuse, resell or assign all or part of the code to a third party, including a competitor.
- In the event of non-payment, a breakdown of the relationship, or if the provider disappears or ceases trading, you often have no document to assert your rights.
- An investor’s or acquirer’s due diligence that uncovers the missing assignment can depress your company’s valuation, or even block a transaction.
The right reflex before launching the project
A development contract must include a clause assigning the economic rights which specifies, for each right assigned (reproduction, communication to the public, adaptation, modification), its scope, purpose, territory and duration: this is the formal requirement laid down by Article L.131-3 of the French Intellectual Property Code. Delivery of the source code, and not only of the compiled software or of access to the app, must also be spelt out in black and white, as must the treatment of third-party and open source components integrated into the project.
If the project has already been delivered without a contract, an assignment can still be negotiated and signed after the event: it is best to do so while the relationship with the developer remains good.
This point is too often overlooked at signature and only discovered when a dispute arises. The firm drafts and secures these development contracts, between France and Tunisia, before the project starts. To discuss your project, contact the firm.
References
- French Intellectual Property Code, Articles L.111-1, L.113-9, L.122-6-1 and L.131-3
- Law No. 94-36 of 24 February 1994 on literary and artistic property, as amended and supplemented by Law No. 2009-33 of 23 June 2009 (Tunisia)