How to Properly Arrange the Transfer of Intellectual Property Rights: Country-Specific Considerations

Information

31 Jul 2026

Date of publication

Intellectual property

Who Is the Author of a Work?

Copyright regulation in most countries is based on the principles established by the 1886 Berne Convention for the Protection of Literary and Artistic Works. Its provisions laid the foundation for the national copyright systems of its contracting states, reflecting international standards for the protection of creative works and defining the key principles of rights protection.

The fundamental principle of copyright law is almost the same in all countries: the author of a work is the individual who directly created it through their own creative effort. It is the author who acquires the moral rights in the work.

However, approaches differ significantly when it comes to the economic rights in a created work. They can broadly be divided into two main models.

Continental European countries, including Germany, France, Denmark, Estonia, Italy, and others, generally proceed from the rule that economic copyright initially belongs to the author — the individual who created the work — even where it was commissioned and fully paid for. The customer or company does not automatically become the owner of those rights. To acquire economic rights, the rights must be assigned or the relevant rights of use must be granted under a licence agreement.

This applies not only to contractors but also to employees: the mere existence of an employment relationship does not always mean that all economic rights are automatically transferred to the employer. As a general rule, the employer acquires only the right to use the work to the extent necessary for the purposes of the employment relationship, while a full transfer of the economic rights in an employee-created work requires separate contractual regulation.

By contrast, the United Kingdom and the United States have historically taken a more pragmatic approach, treating a work as the result of services performed on commission or in the course of employment.

In the United Kingdom, under the Copyright, Designs and Patents Act, the employer is the first owner of copyright in any work created by an employee in the course of their employment, unless otherwise agreed.

In the United States, a similar approach is implemented through the “work made for hire” doctrine, under which, in certain cases defined by law, the employer or commissioning party may be regarded as the initial owner of copyright in the created work.

In Ukraine, only the individual who created a work may be recognised as its author. Economic rights may be transferred to another person only in cases provided for by law or contract. At the same time, the law establishes special rules for works created in connection with the performance of an employment agreement, known as employee-created works. The economic rights in such a work are transferred to the employer in full from the moment the work is created, unless otherwise provided by law, the employment agreement, or another agreement concerning the economic rights in the employee-created work concluded between the employee, as the author, and the employer.

The “Work Made for Hire” Doctrine

The United States applies the “work made for hire” doctrine established under Title 17 of the U.S. Code — Copyrights.

Where a work qualifies as a work made for hire, the employer or other person for whom the work was prepared is considered its author and owns all economic copyright in the work, unless the parties expressly agree otherwise in a written instrument.

Ownership of copyright

(b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

The doctrine covers two categories of works:

works created by employees within the scope of their employment duties;

certain works created by independent contractors on commission or by order, but only where both of the following conditions are satisfied:

the work falls within one of the categories specified in Section 101 of the Copyright Act;

the parties have entered into a written agreement expressly stating that the work is a work made for hire.

These categories include:

a contribution to a collective work;
part of a motion picture or another audiovisual work;
a translation;
a supplementary work;
a compilation;
an instructional text;
a test;
answer material for a test;
an atlas.

Under the Copyright Act, a supplementary work is a work prepared for use together with a primary work for the purpose of explaining, commenting on, illustrating, or facilitating the use of that work. Examples include forewords, afterwords, illustrations, maps, charts, tables, editorial notes, musical arrangements, bibliographies, appendices, and indexes.

In practice, disputes frequently arise as to whether a work created by an independent contractor falls within one of the categories specified in the Copyright Act. Therefore, even where the parties intend to apply the “work made for hire” doctrine, it is advisable to include a separate provision in the agreement assigning all economic copyright in the work to the customer.

This approach minimises the risk of disputes over copyright ownership where a court concludes that the “work made for hire” doctrine does not apply to the specific work.

Employee-Created Works in the EU

The EU does not have a single harmonised “work made for hire” doctrine comparable to that of the United States. As noted above, continental copyright law, on which the legislation of most EU Member States is based, proceeds from the principle that the author of a work is always the individual who created it. A legal entity, including an employer, cannot generally be regarded as the initial holder of copyright.

The regulation of employee-created works in the EU, other than computer programs, has not been harmonised at the level of EU directives and is governed by the national law of each Member State. As a result, approaches to the allocation of rights between employees and employers may differ significantly.

France

Under the French Intellectual Property Code, or Code de la propriété intellectuelle, the mere existence of an employment agreement does not result in the assignment of copyright to the employer. The employee-author remains the initial holder of both economic and moral rights. To use the work in connection with the employee’s duties, the employer will generally require a separate contractual provision assigning or licensing the relevant rights.

Germany

Under the German Copyright Act, or Urheberrechtsgesetz, the author of a work created by an employee in the course of employment remains the employee rather than the employer. Rights of use are transferred to the employer only to the extent arising from the content or nature of the employment relationship — that is, to the extent objectively necessary for the purpose of the employment agreement — unless the parties have expressly agreed otherwise.

Accordingly, a clear and comprehensive transfer of rights in the work, or the terms governing its use, should be separately regulated in an agreement between the employee and the employer, whether in the employment agreement or a separate licence agreement.

The Netherlands

Unlike the French and German models, the Dutch Copyright Act, or Auteurswet, establishes a statutory presumption: where a work is created by an employee in the performance of their employment duties, the employer is considered the author of the work unless the parties have agreed otherwise.

Several EU countries apply an approach similar to the Dutch model, under which the employer is regarded as the initial holder of copyright in a work created by an employee within the scope of their duties, unless the parties agree otherwise. Other countries take the opposite approach: by default, the rights remain with the employee, and their transfer to the employer requires separate contractual regulation.

Since there is no harmonised EU-wide approach and the applicable rules vary significantly between jurisdictions, national law must be analysed separately when entering into employment agreements involving a creative component. This is necessary to determine correctly who owns the rights in the created work.

The Exception for Computer Programs

Interestingly, the laws of many European countries establish a special regime for the economic rights in computer programs created in the course of employment.

This exception is explained by the specific nature of software as an object of copyright. Unlike traditional literary works, software is usually created as part of an organised business process: by teams of developers, based on the employer’s technical specifications, and using the company’s resources, infrastructure, and funding. This is why the legislation of several European countries provides for a special regime for computer programs.

This approach results from the harmonisation of EU law. Under Directive 2009/24/EC on the legal protection of computer programs, where a computer program is created by an employee in the execution of their duties or following the employer’s instructions, the employer is entitled to exercise all economic rights in the program, unless otherwise provided by contract.

The implementation of this Directive led to the adoption of similar provisions in the laws of Germany, France, Denmark, Italy, Estonia, the Czech Republic, and other EU Member States.

At the same time, this rule primarily applies to works created within an employment relationship and does not establish an automatic transfer of economic rights where software is created by independent contractors. In such cases, ownership of the rights is determined under the agreement, taking into account the applicable national law.

Germany

The German Copyright Act provides that where a computer program is created by an employee in the execution of their duties or following the employer’s instructions, the employer is entitled to exercise all economic rights in the program, unless otherwise agreed.

Importantly, this rule applies not only to conventional employment relationships but may also apply accordingly to certain service relationships.

France

Under the French Intellectual Property Code, where software and the accompanying documentation are created by an employee in the execution of their duties or following the employer’s instructions, the economic rights belong to the employer, who has the exclusive right to exercise them, unless otherwise provided by law or contract.

Denmark

The Danish Copyright Act applies a similar approach: where a computer program is created by an employee in the execution of their duties or following the employer’s instructions, copyright in the program is transferred to the employer.

The employer therefore automatically acquires the ability to use, modify, distribute, and commercialise the software.

Italy

Italian law also establishes a special regime for software.

Italian copyright law, including the legislation on the protection of copyright and related rights, generally proceeds from the principle that the mere creation of a copyright-protected work by an employee in the course of employment, or by a contractor in the provision of services, does not automatically result in the transfer of economic copyright to the employer or customer. The terms governing the transfer of economic rights must be established in an agreement between the parties.

At the same time, Italian law provides specific exceptions for certain categories of intellectual property, including computer programs, databases, and works of industrial design.

Accordingly, where a computer program or database is created by an employee in the execution of their duties or following the employer’s instructions, the employer has the exclusive right to exercise all economic rights in that work, unless otherwise agreed.

A similar special approach to the allocation of economic rights in computer programs created in the course of employment also applies in other European countries, including Austria, Bulgaria, Estonia, and the Czech Republic, whose national laws implement the above-mentioned EU Directive on the legal protection of computer programs.

Ukraine

Ukrainian law also recognises the special status of computer programs as objects of copyright.

Under the Law of Ukraine “On Copyright and Related Rights”, computer programs are protected as literary works. Where a computer program is created by an employee in the execution of their employment duties or under a specific assignment from the employer, the economic intellectual property rights in the program are transferred to the employer in full from the moment of creation, unless otherwise provided by law or an agreement between the employee and the employer.

At the same time, the transfer of rights from independent contractors remains contract-oriented. Proper contractual regulation of the ownership of economic copyright in the created product is therefore particularly important for IT companies, startups, and customers commissioning software development.

Such agreements should regulate, among other matters, the transfer of economic copyright, the moment at which the rights are transferred, the scope of the rights to use the created work, and the possibility of its subsequent modification, commercialisation, and use without restrictions as to term, territory, or method of use.

The contractual aspects of transferring rights in intellectual property are examined below.

Transfer and Assignment of Economic Copyright: Different Approaches

One of the key differences between legal systems in their approach to copyright is whether economic copyright in a created work may be fully assigned and transferred from the author to another person.

In common law countries, including the United States and the United Kingdom, copyright is traditionally treated as a property asset that may be fully assigned to another person.

By contrast, the laws of certain European countries do not permit the full assignment of copyright. Instead, they provide only for the granting of economic rights to use the work under a licence agreement or another arrangement granting rights of use.

Prohibition on Copyright Assignment and the Licensing Model

Germany

The German copyright model is one of the clearest examples of the continental approach, under which copyright is inseparably connected with the identity of the author.

Under the Urheberrechtsgesetz, copyright as a unified right of the author cannot be transferred to another person, except by inheritance. German law therefore does not permit a conventional assignment agreement under which the author fully assigns their economic copyright.

Instead, the law allows rights of use in a work to be granted. These rights may be exclusive, where the right of use belongs solely to the licensee, or non-exclusive, allowing the author to grant similar rights to other persons.

The Czech Republic

A similar approach applies in the Czech Republic.

The Czech Copyright Act also does not permit the complete assignment of copyright: the author’s economic rights cannot be transferred to another person through a conventional assignment.

Instead, lawful use of the work is ensured through a licence agreement defining the scope of the granted rights. Therefore, where software, a design, or another copyright-protected work is commissioned, the parties usually agree in detail on the type of licence, whether exclusive or non-exclusive, the possibility of sublicensing, and the rights to modify, adapt, commercialise, and otherwise use the results of the work.

Austria

Austrian law, including the Act on Copyright and Related Rights, or Urheberrechtsgesetz, distinguishes between copyright itself, which remains with the author, and rights of use in the work, which may be granted to another person.

Accordingly, although full assignment of copyright is not permitted, the author may grant a contracting party an exclusive or non-exclusive right to use the work under an agreement. This structure is the principal mechanism used to regulate the transfer of rights in Austrian contractual practice.

The Conventional Assignment Model

Unlike legal systems in which the transfer of copyright is restricted, several jurisdictions apply the conventional assignment model, under which economic copyright may be fully assigned to another person.

Under this model, the author or another rights holder may transfer all or part of the economic copyright in a created intellectual property asset under a separate assignment agreement. As a result, the assignee becomes the owner of the assigned economic rights and may independently exercise, commercialise, modify, and transfer them to third parties.

This approach is characteristic of the United States and the United Kingdom, as well as other jurisdictions that permit the contractual assignment of economic copyright.

The United Kingdom

Under the Copyright, Designs and Patents Act, economic copyright in a work may be freely assigned to another person under a written agreement.

One distinctive feature of the British model is the possibility of providing for the transfer of rights in works that have not yet been created at the time the agreement is concluded, known as prospective ownership of copyright.

Where a person who will acquire copyright in a future work enters into a written agreement in advance for its assignment, the assignment takes effect automatically when the relevant copyright comes into existence upon creation of the work.

British law therefore allows the parties to regulate ownership of the results of future creative activity in advance, without the need to enter into additional agreements after the work is created.

This model is widely used in relationships with software developers, designers, content creators, and other independent contractors where the customer seeks to secure full control over the results of the work before they are created.

France

French law permits the assignment of economic copyright but imposes significantly stricter requirements on such agreements than the legal system of the United Kingdom.

Under the Code de la propriété intellectuelle, a general assignment of rights in all future works of an author is invalid. In addition, an agreement assigning economic rights must clearly identify each work to which the assignment applies and define the limits within which the rights may be exercised, including the methods and purpose of use, the territory, and the term.

French law therefore does not permit the transfer of an undefined set of rights in future works created by an author or contractor. To acquire control over a specific intellectual property asset, the customer must agree in advance on the terms relating to the relevant work and the permitted methods of its use.

The United States

US law provides for a developed model of contractual assignment of economic copyright. Under Title 17 of the U.S. Code — Copyrights, copyright may be transferred in whole or in part to another person under a written assignment agreement.

For the assignment to be legally valid, it must be in writing and signed by the copyright owner or their duly authorised representative. The mere transfer of the work itself, such as a file or another deliverable, does not automatically result in the transfer of copyright.

US practice permits both the full assignment of copyright and the transfer of individual rights of use, including the rights of reproduction, distribution, adaptation, and other methods of exploiting the work.

At the same time, US courts pay particular attention to the wording of the agreement. The wording “hereby assigns” confirms an immediate transfer of rights, whereas “agrees to assign” merely creates an obligation to transfer the rights in the future and does not itself effect the transfer.

Clearly defining the scope of the assigned rights and properly documenting the assignment are therefore essential in the United States to avoid disputes over copyright ownership.

Ukraine

Ukrainian law permits the transfer or assignment of economic copyright under an agreement but provides for several contractual models depending on the nature of the relationship.

In particular, the parties may enter into an agreement for the commissioned creation of a copyright-protected work, an agreement assigning exclusive economic rights in an existing work, or a licence agreement.

The scope of the transferred rights, the methods of using the work, the possibility of modification and commercialisation, and the right to transfer the rights further must be expressly defined in the agreement.

Essential Elements of an Intellectual Property Rights Assignment Agreement

As noted above, approaches to the assignment and transfer of economic intellectual property rights differ significantly depending on the jurisdiction. Therefore, when entering into agreements concerning the creation and/or transfer of rights in software, designs, or other intellectual property, the specific features of the relevant legal system must be taken into account.

In the United States, the United Kingdom, and Ukraine, the conventional assignment agreement model may be used, under which economic copyright may be fully or partially assigned to another person.

By contrast, countries such as Germany, Austria, and the Czech Republic predominantly use the model of granting rights of use through an exclusive licence, since copyright itself cannot be fully assigned.

There is therefore no universal contractual structure for transferring intellectual property rights. Companies operating internationally or engaging foreign developers, designers, or other contractors must adapt their agreements to the requirements of the relevant jurisdiction and clearly define the scope of the transferred rights and other essential terms.

Agreements should clearly regulate:

the transfer of all economic copyright in the created product or another intellectual property asset to the employer or customer;

the moment at which the economic rights are transferred, including whether they are transferred upon creation of the work, execution of an acceptance certificate, payment of remuneration, or completion of another action specified by the parties;

the scope of the rights to use the created product, including the rights to reproduce, modify, adapt, update, integrate with other products, distribute, commercialise, and license the product to third parties, including through sublicensing;

any restrictions, or the absence of restrictions, relating to the term, territory, and methods of using the intellectual property asset, where such a scope of rights is required for the company’s business model.

Proper contractual regulation of these matters minimises the risk of disputes concerning ownership of intellectual property and enables the company to use, develop, and commercialise the created product fully.

Moral Rights: Inalienability and Waiver

In addition to the transfer of economic rights, the legal treatment of the author’s moral rights is equally important. These rights include the right of authorship, the right to be identified as the author, and the right to the integrity of the work.

In most countries, including Ukraine, moral rights are inalienable and cannot be transferred to another person. Even where an employer or customer acquires all economic rights in a work, the moral rights remain with the author.

The author may agree not to exercise certain moral rights or not to require that their name be indicated, but this does not mean that those rights are transferred to another person.

The United States applies a different approach. An author may voluntarily waive certain moral rights. Such a waiver is valid only if it is expressly stated in a written document signed by the author.

The document must clearly identify the work to which the waiver applies and the methods of use covered by the waiver. The waiver applies exclusively to the work and methods of use expressly specified in the relevant document.

Where a work is created jointly by two or more authors, a waiver granted by one of the authors in accordance with the applicable provision extends to all co-authors.

A similar mechanism exists in the United Kingdom, where the author’s moral rights cannot be transferred to another person, but the author may waive them in writing by executing a document signed by the person waiving the right, commonly referred to as a consent and waiver of rights.

Such a waiver may relate to a specific work or works, as well as existing or future works. It may be unconditional or subject to certain conditions and may also provide for the possibility of withdrawal.

Where the waiver is granted in favour of the owner or future owner of copyright in the relevant work or works, it is presumed to extend to that person’s licensees and successors in title, unless a different intention is expressly stated in the waiver.

Accordingly, even where a company acquires all economic rights in a created work, the treatment of the author’s moral rights requires a separate analysis under the law of the relevant jurisdiction.

When preparing an agreement, it is advisable to regulate separately the attribution of the author, the possibility of making changes to the work, and other aspects of exercising moral rights during the subsequent commercialisation of the product.

Case Law

Scott Hargis v. Pacifica Senior Living Management (United States, 2023)

One illustrative example of the risks associated with using intellectual property without proper contractual arrangements is the case of Scott Hargis v. Pacifica Senior Living Management.

Scott Hargis is an architectural photographer from California. He was initially hired by Atria Management Company to photograph several senior living properties. Another company, Pacifica Senior Living Management, later acquired those properties from Atria and began using 42 of Hargis’s photographs on its website without obtaining his permission.

Hargis’s representatives informed Pacifica that the licences for the photographs were not automatically transferable from Atria to Pacifica and demanded that the images be removed from the website.

In other words, the rights granted by Hargis to Atria did not automatically pass to the new owner of the properties. They constituted a separate asset requiring separate contractual arrangements.

Despite repeated notifications from the author concerning the copyright infringement and attempts to resolve the matter out of court, Pacifica continued to use the photographs even after it had been informed that the photographer held exclusive rights in the works.

Given that Pacifica was a large commercial organisation, had legal advisers, and was aware of the requirements of US copyright law, the court considered the use to constitute wilful infringement.

The proceedings concluded with a jury verdict awarding the photographer USD 6.3 million in damages — USD 150,000, the maximum statutory amount for wilful infringement, for each of the 42 works.

The case demonstrates that using another person’s intellectual property without an agreement or permission from the rights holder constitutes direct copyright infringement and gives the rights holder grounds to seek judicial protection.

4DD Holdings, LLC v. United States (United States, 2026)

Another illustrative example — this time involving not the absence of an agreement, but use exceeding the scope of rights expressly defined in the agreement — is the case of 4DD Holdings, LLC v. United States.

4DD Holdings developed TETRA software, a specialised medical records management system. The US Department of Defense purchased a licence under an end-user licence agreement, or EULA, permitting use of a limited number of copies of the software — covering 64 processor cores and 50 user seats — for approximately USD 1 million.

However, a contractor engaged by the Department of Defense to customise the software for government systems installed significantly more copies during development and testing than the EULA permitted, thereby exceeding the agreed scope of the licensed rights.

The licence-tracking system was effectively non-operational, and the government did not verify compliance with its own limits. When the scale of the excess use began to emerge, a government representative ordered the destruction of an unknown number of unauthorised copies of the software, together with evidence of the infringement itself. This later became the subject of separate court sanctions.

The court found that the terms of 4DD Holdings’ EULA expressly prohibited copying the software beyond the permitted limit and that the government had infringed the developer’s copyright by installing significantly more copies than the agreement allowed.

In 2023, the court of first instance awarded USD 12.68 million in damages. The amount was calculated not on the basis of the standard licence fees, but through a “hypothetical negotiation” model — the amount the parties would have agreed upon had they negotiated the expanded scope of use before the infringement began.

The court also imposed USD 1.1 million in sanctions for the destruction of evidence of the infringement.

In 2026, the appellate court confirmed that calculating damages through a hypothetical negotiation was legally permissible but found that the amount itself had been calculated incorrectly.

The court of first instance had improperly taken into account information that the parties could not have known at the time of the infringement and had added a punitive increase for wilful infringement, which is not permitted in claims against the government.

The case was remanded for a new determination of the amount of damages, and the final amount remains unknown.

The case demonstrates that exceeding the scope of rights expressly defined in a licence agreement, including limits on the number of copies or users, constitutes copyright infringement even where the parties formally have a valid licence agreement.

Conclusion

As the above examples demonstrate, there is no single universal approach to the legal regulation of intellectual property rights transfers across different jurisdictions.

National legal systems differ in how they determine whether economic rights may be assigned, the scope of the rights that may be transferred, and the restrictions applicable to specific categories of rights.

In these circumstances, the agreement becomes the key instrument for ensuring legal certainty and protecting the parties’ interests.

To avoid future disputes, the agreement must clearly define the scope of the transferred rights, including the methods of use, territory, and term, as well as other essential terms, taking into account the specific requirements of the relevant jurisdiction.

Proper contractual documentation of an intellectual property rights transfer not only enables the effective use of the results of creative or innovative activity but also minimises the risk of disputes concerning ownership of the created product.

A comprehensive legal analysis and careful drafting of the agreement are therefore essential to protecting the interests of both the rights holder and the assignee.

Legal IT Group helps develop agreements that take into account the requirements of the relevant jurisdiction and provide appropriate protection for the parties’ interests.

We look forward to working with you!

How to Properly Arrange the Transfer of Intellectual Property Rights: Country-Specific Considerations