Who Owns the Code? IP Ownership in Software Development Contracts (France and EU)

Who owns the code an agency or freelancer writes for you under French and EU law, why paying is not enough, and the contract clauses that protect you.

Key Takeaways

  • In France and the EU, software is protected by copyright from the moment it is written, with no registration needed.
  • Code written by your employees in the course of their work belongs to you by default. Code written by an agency or freelancer belongs to its author unless rights are assigned to you in writing.
  • Paying the invoice does not transfer ownership. French law expects an assignment that lists each right and its scope (extent, purpose, territory, duration).
  • Check three more things: when ownership passes (from creation is safest), what happens to the agency's pre-existing tools, and the open-source licences inside your product.
  • Keep repositories and hosting in your accounts, and consider a source-code deposit with a trusted third party for critical software you license rather than own.

Software IP ownership is the question of who holds the economic rights to a program: the rights to copy, modify, distribute and sell it. If you commission software and don't own those rights, you may not be able to change developer, sell your company cleanly or even keep using the code if the relationship ends. In France the default rules surprise many buyers, so here is how they work and what to put in the contract. This is a practical guide, not legal advice; have a lawyer review contracts for significant projects.

How software is protected

Software is protected by copyright (droit d'auteur) as a literary work, under the French Code de la propriété intellectuelle (CPI on Légifrance) and, across the EU, the Software Directive 2009/24/EC. Protection is automatic: it covers the source code, object code and preparatory design material from the moment they exist. Ideas, algorithms and functionality as such are not protected; their expression in code is.

Who owns code by default

Who wrote the codeDefault owner of the economic rightsWhat you need
Your employee, in the course of their duties or on your instructionsYou, the employer (CPI art. L113-9; Directive art. 2(3))Clear job scope; nothing else in most cases
An agency, studio or freelancer you hiredThe author or their companyA written assignment of rights to you
An agency's employees working on your projectThe agency (as their employer)A written assignment from the agency to you
Open-source components in your productTheir authors, under their licenceCompliance with each licence

The second and third rows are where buyers get caught. A purchase order, a quote marked "paid" or a statement of work that says "deliver an application" does not, on its own, transfer the copyright. Under article L131-3 of the CPI, a transfer of author's rights requires each assigned right to be mentioned separately, with its scope defined by extent, purpose, place and duration. French courts have been divided on how strictly this article applies to software contracts, which is exactly why a precise clause is worth having.

What a good IP clause covers

  1. Which rights are assigned: reproduction, adaptation and modification, translation, distribution, commercialization and licensing to third parties. Listing them avoids arguments later.
  2. What is covered: source code, object code, documentation, designs, data models and any deliverable created for the project.
  3. Scope: worldwide, for the full legal term of protection, for all forms of exploitation, including ones you don't plan yet.
  4. When rights pass: from creation is safest. "On full payment" leaves you without rights to work already delivered if a dispute stops payment, which is when you need them most.
  5. Price: state that the assignment is included in the fees, so its consideration is clear.
  6. Pre-existing material: an agency usually keeps the tools and libraries it built before your project. In that case you need a perpetual, irrevocable, royalty-free licence to use and modify them as part of your product, transferable if you sell the company.
  7. Open source: an inventory of third-party components and their licences, and a commitment not to include copyleft code (such as GPL) in ways that would oblige you to publish your own source. The GNU GPL FAQ and choosealicense.com explain the differences.
  8. Warranty: the agency guarantees the code does not infringe third-party rights and covers you if it does.

Moral rights also exist under French law, but for software they are limited: the author cannot oppose modifications unless they harm their honour or reputation (CPI art. L121-7). They rarely cause practical problems.

Ownership in practice: accounts, access and escrow

Owning the rights is not enough if you can't reach the code.

  • Repositories in your accounts (GitHub, GitLab or similar), with the agency invited as collaborators, from the first commit.
  • Hosting and third-party services (cloud, domain names, email delivery, payment providers) registered to your company.
  • Documentation and credentials delivered as part of each milestone, not only at the end.
  • Source code deposit (escrow). For software you license rather than own, a deposit with a trusted third party such as the Agence pour la Protection des Programmes gives you access to the source if the supplier disappears.

Red flags in a contract

  • No IP clause at all, or "the client receives a licence to use the software".
  • Rights transferred only "upon full and final payment of all invoices".
  • The agency keeps "all rights in generic components", without defining which components are generic.
  • Repositories and hosting in the agency's accounts, with access "on request".
  • No mention of open-source components.

Frequently asked questions

If I paid for the software, don't I own it? Not automatically when an agency or freelancer wrote it. Under French law, the author keeps the rights unless the contract assigns them in writing, listing the rights and their scope.

Does a freelancer need to sign an assignment, even for a small job? Yes, if you want to own the result. It can be a short clause in the quote or contract, but it should exist.

Can the agency reuse our code for other clients? Not code whose rights you own, without your permission. They can reuse general know-how and their own pre-existing tools, which is why the contract should say which is which.

What happens to IP if we change agency? If rights were assigned to you and the code is in your accounts, nothing changes: the new team picks up where the old one stopped. Our guide on whether to rescue or rewrite covers what comes next technically.

At FNB Solutions, the client owns the code and IP from day one, and repositories and hosting stay in the client's accounts; every engineer signs an agreement covering confidentiality and assignment of IP to the client. Our full contract terms are public. For the other questions to ask a partner, see how to vet a software development agency, or start a conversation.

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