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IT copyrights

In almost every contract on providing IT services (whether it is a body leasing or managed service contract) the copyrights section appears. This section frequently causes problems and the implications of its content are not clear to everyone. However, it speaks of the key issues in a contract concerning the provision of programming services or similar services. What should we pay attention to when a client requests “copyrights” from us?

Author’s moral rights

Firstly, clients – especially the American ones – often request all the “copyrights”, understood as all possible rights to the works developed on their behalf. Not so rarely, they even indicate that the acquisition of copyrights is on the principle of "works for hire", meaning more or less that any work developed by a software developer from the very beginning is treated as created by our client. Can we agree to this?

If we are a software developer hired by such an entity, theoretically, we can and nothing special will happen to us as a result. If, on the other hand, we operate as a software house or are another entity that hires software developers who perform the works offered to our clients, we should not do so. We must remember the following key rule: we cannot dispose of more than we have acquired ourselves. According to Polish law, the author’s moral rights are non-transferrable and always belong to the author. What we can do is receive, from the creators of the code, the authorization to exercise these rights on their behalf and a commitment that they will not exercise them. In the vast majority of cases, it is business acceptable, even by the biggest international corporations.

Fields of use

Secondly, it is not uncommon for clients to demand the rights to use the works developed for them, the current ones and those to be created in the future, in all possible fields of exploitation. We must remember that under contracts with our personnel we can only acquire the right to use the works developed by them in the fields of exploitation known at the time of concluding the contract. Additionally, it would be best for the exploitation fields to be listed in a contract. The Polish Act on copyright and related rights lists in Article 74(4) the so-called “default fields of exploitation”, on which the acquired software can be used.

Source code

The sole acquisition of author's economic rights to a work does not result in obtaining the rights to the source code of the acquired program. We ought to remember about the acquisition of rights to the source code whenever it is important to us.

Electronic form – DocuSign, etc

In the IT industry, there is an observable strong drive to digitize all possible processes, including documents. We must remember that, according to Polish law, the acquisition of author's economic rights requires that the agreement regulating the acquisition was concluded in a written form. If the foregoing condition is not satisfied, there is no effective acquisition of author's economic rights to a work. What does the written form mean? Here, we must encode that the DocuSign and similar programs for the digitization of documents do not meet the written form requirement, according to Polish law. Under Polish law, the document satisfies requirements of written form when it is drawn fully on paper and signed personally. The electronic form, understood as providing a document with a qualified electronic signature, is equivalent to the written form. The conclusion of a contract through the DocuSign system or a similar system is the conclusion of a contract in the document form - which is not equal to the written form and does not lead to the effective acquisition of the author’s economic rights.