Intellectual property ownership: who owns it and how to document it

Intellectual property ownership in the Netherlands is decided by law and by contract, not by who paid for the work. Copyright in a work an employee makes as part of their job belongs to the employer under Article 7 of the Dutch Copyright Act (Auteurswet), but copyright in work made by a freelancer or agency stays with that freelancer or agency until it is transferred in writing under Article 2(3) of the Act.

That distinction explains most ownership problems Dutch businesses discover during a funding round, a sale or a dispute. This article covers who owns what, how ownership is transferred and documented, what registration adds and how to keep rights alive. For the rights themselves, see our ინტელექტუალური საკუთრების სამართლის სახელმძღვანელო ნიდერლანდებში; for infringement, see ინტელექტუალური საკუთრების აღსრულება ნიდერლანდებში.

Who owns the intellectual property your organisation creates?

It depends on the right and on the relationship with the maker. The default rules differ for copyright, patents and registered rights, and they are not intuitive.

Copyright created by employees

Under Article 7 of the Copyright Act, if an employee’s work consists of making certain works, the employer is regarded as the maker, unless the parties agreed otherwise. The right arises with the employer directly. The rule requires an employment contract, so it does not cover freelancers, directors without an employment contract, interns or volunteers, and the work must fall within the employee’s duties.

Under Article 8 of the Copyright Act, a company or other legal entity that publishes a work as its own, without naming a natural person as maker, is also regarded as the maker. That helps for brochures and reports, but it depends on how the work was published and is no substitute for a contract.

Inventions made by employees

For patents the rule is almost the reverse. Under Article 12(1) of the Dutch Patents Act 1995 (Rijksoctrooiwet 1995), the employee is entitled to the patent, unless the nature of the job involves using their special knowledge to make inventions of that kind; only then does the employer hold the right. Inventions by trainees go to the organisation where they relate to the work, and inventions by researchers at a university or research institution go to that institution.

Under Article 12(5) of the Patents Act, the parties may agree otherwise in writing. Where the employer holds the right and the salary does not already compensate for it, the inventor is entitled to fair compensation under Article 12(6); a clause excluding that is void, and the claim lapses three years after the patent is granted. See also our article on პატენტის მოთხოვნა ნიდერლანდებში.

Trade marks, designs, AI output and trade secrets

Trade marks and designs belong to whoever files them, which causes problems when an employee, director or marketing agency files in its own name. Output generated by an AI system without human creative choices is generally not protected by copyright; see our articles on ვის ეკუთვნის ხელოვნური ინტელექტის ინსტრუმენტის მიერ შექმნილი რას ქმნის მდე AI-generated inventions. Information without any registered right can be protected as a trade secret under the Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen), but only if you take reasonable measures to keep it secret.

Who owns work done by freelancers, agencies and suppliers?

The maker does, unless the rights were transferred in writing. Paying the invoice gives you at most an implied licence to use the result for the evident purpose of the assignment, and its scope is whatever a court later decides.

Without a transfer, you cannot stop the supplier from reusing the work for a competitor, you may not be allowed to adapt it, you cannot grant sub-licences to a distributor or franchisee, and you cannot include the right in a sale of the business. An acquirer conducting გულდასმით will ask for the chain of title, and a gap usually becomes a price reduction or an indemnity.

The solution is a clause in every commissioning contract that transfers all intellectual property rights in the deliverables, obliges the supplier to obtain the same from its staff and subcontractors, and requires cooperation with later formalities. Add a warranty that the deliverables do not infringe third-party rights, with an indemnity. Where the supplier will not transfer, agree the licence explicitly: exclusive or not, territory, duration, transferability and the right to modify.

Check the supplier’s general terms. Many Dutch agencies use industry terms under which the agency keeps the copyright and grants a limited licence; if those terms were validly incorporated, for example through an order confirmation you did not object to, they can decide who owns your brand identity.

How do you transfer intellectual property correctly?

Under Article 2(3) of the Copyright Act, a transfer of copyright or an exclusive licence must be agreed in writing. An email or an invoice line saying “rights included” is a weak basis; use a signed document identifying the works. A transfer by the maker only covers the rights expressly mentioned or necessarily following from the agreement, so describe the works and the rights specifically.

What happens to moral rights?

Moral rights (persoonlijkheidsrechten) under Article 25 of the Copyright Act stay with the maker even after a transfer. They include the right to be named and to object to changes and to distortion that could harm the maker’s reputation. Under Article 25(3), the maker can waive the right to be named and, as far as changes are concerned, the rights to object to modifications; the right to oppose damaging distortion cannot be waived. Agree on credits and get a written waiver if the work will be adapted.

Recording transfers of registered rights

Under Article 2.33 of the Benelux Convention on Intellectual Property (BCIP), a transfer or licence of a Benelux trade mark can only be invoked against third parties once it is recorded in the register; similar rules apply to designs and patents. Businesses often transfer rights to a holding company without recording it, so the register still names the old owner. Record the transfer when you sign it.

Two more documents belong in the file: a confirmatory assignment for anything a founder, employee or contractor created before their contract started, and proof that a bankruptcy trustee actually transferred the intellectual property when you bought assets from an insolvent estate.

What does registration add?

Copyright arises automatically on creation and, under Article 37 of the Copyright Act, lasts until 70 years after 1 January of the year following the maker’s death. Because there is no register, you must keep your own dated evidence: drafts, version history, project files with metadata, client correspondence and invoices.

Trade marks and designs must be registered to be enforced as such. A Benelux registration with the Benelux Office for Intellectual Property (BOIP) covers the Netherlands, Belgium and Luxembourg; an EU trade mark or registered Community design from the EU Intellectual Property Office (EUIPO) covers the whole EU. Registration is territorial, and a domain name gives no trade mark rights. Search before filing, because the offices do not refuse an application on the basis of an earlier mark; the earlier owner must oppose.

A Dutch national patent from the Netherlands Patent Office (Octrooicentrum Nederland) is granted without a substantive examination of novelty, so the certificate says less about its strength than people assume. A European patent from the European Patent Office is examined and can now also be obtained with unitary effect and litigated before the Unified Patent Court, which has a local division in The Hague. Decide on the route before any public disclosure, because a demonstration or press release can destroy novelty.

How do you keep your portfolio alive?

Registered rights lapse quietly if deadlines are missed. Under Article 2.9 BCIP, a Benelux trade mark is registered for 10 years and can be renewed for further 10-year periods. Under Article 3.14 BCIP, a Benelux design runs for five years and can be renewed four times, up to 25 years. Patents require annual renewal fees, and a missed payment ends the right.

Trade marks also require genuine use. Under Article 2.23bis BCIP, a mark not genuinely used in the Benelux for the registered goods or services for five years after registration, or for an uninterrupted five-year period, is exposed to revocation and to non-use defences in opposition and infringement proceedings. Register for what you actually offer plus a realistic margin, and keep dated evidence of use per mark and per category.

Keep the chain of title in one register: the right, the owner, the registration number, the territory, the classes or claims, the next deadline and where the deeds are kept. Review it once a year and after every merger, name change or group transfer.

How do you deal with intellectual property in contracts and transactions?

Most ownership questions are settled in ordinary commercial documents. Four choices matter.

• Assignment or licence: insist on assignment for anything that is part of your identity or product; for inputs, a licence is normal. See also როგორ მუშაობს პროგრამული უზრუნველყოფის ლიცენზირება.
• კონფიდენციალობა: sign a არ გამჟღავნება შეთანხმება before the first meeting and take the measures described in our article on სავაჭრო საიდუმლოებების დაცვა.
• შრომითი ხელშეკრულებები: confirm that intellectual property created in the course of employment belongs to the employer, including inventions where Article 12(5) of the Patents Act allows it, and add a return-of-materials clause. For founders, see ინტელექტუალური საკუთრების დაცვა, როგორც სტარტაპი.
• გარიგებები: in a share sale the company keeps its rights; in an asset sale each right must be transferred and, where registered, recorded. Check licences for change-of-control clauses.

What if someone uses your rights without permission?

Secure dated evidence of the infringing use and of your own earlier right first. Then send a შეჩერდეს და არ გამოტოვოთ წერილი with a deadline, followed if necessary by summary proceedings (kort geding) for an injunction.

Under Article 1019h of the Dutch Code of Civil Procedure (Rv), the losing party in intellectual property enforcement proceedings can be ordered to pay the winner’s reasonable and proportionate legal costs, rather than the usual fixed amounts. Customs can be asked to detain suspected counterfeit goods at the border. See also our article on ინტელექტუალური საკუთრების დავების განხილვა.

What should you check as a business (employer or client)?

• Check that every freelancer, agency and supplier contract contains a written transfer of rights.
• Check that trade marks, designs and domain names are registered in the company’s name, not a founder’s or agency’s.
• Check that employment contracts cover inventions and work outside strict working hours where the law allows it.
• Check renewal dates: 10 years for Benelux trade marks, five-year terms for designs, annual fees for patents.
• Check that internal transfers to group companies are recorded in the registers.
• Keep dated evidence of trade mark use per mark and per category.

What should you check as a creator (employee, freelancer or agency)?

• Check whether your contract transfers your rights or only grants a licence, and for what scope.
• Check whether your general terms were validly incorporated in the client’s order.
• As an employed inventor, check whether your salary reflects the loss of the patent; your claim for fair compensation lapses three years after grant.
• Agree in writing how you will be credited and which changes you accept.
• Keep your own dated drafts and project files as evidence of authorship.

What can we do for you with intellectual property ownership?

ჩვენი კორპორატიული იურისტები advise businesses and creators on who owns what and how to document it.

• We map who owns the intellectual property in your organisation and where the gaps are.
• We draft transfer and licence clauses for employment, freelance and supplier contracts.
• We draft confirmatory assignments and arrange recordal in the BOIP and EUIPO registers.
• We set up a portfolio register with renewal and use deadlines.
• We send cease and desist letters and conduct enforcement proceedings.

შემაჯამებელი

• Copyright in employees’ work belongs to the employer under Article 7 of the Copyright Act; freelancers keep their rights unless transferred in writing.
• Employees are entitled to their inventions unless inventing is part of their job (Article 12 of the Patents Act 1995).
• Moral rights stay with the maker; only some can be waived.
• Record transfers of trade marks and designs, renew on time and keep evidence of use.
• In intellectual property cases the loser can be ordered to pay the winner’s reasonable legal costs (Article 1019h Rv).

ხშირად დასმული შეკითხვები