How do you secure the copyright in the source code of bespoke software?

If you have a website, game, webshop, app or computer program developed for you, the copyright in the source code stays with the programmer. The result: as the client you may not change anything in the bespoke software, or have it changed, and you may even have to stop using it. Not exactly practical. So arrange the copyright in the software properly. What should you think about?

Which software is protected by copyright?

First, establish whether the software is protected by copyright. Copyright protects source code that is original and sufficiently creative. Source code written to order will usually pass that test easily, so you can assume it is protected.

The functionality, the programming language and the underlying ideas and principles of a program are not protected. Certain functional aspects of a program’s user interface, for example, fall outside copyright.

Who holds the copyright in the software

Once it is clear that the software is protected, you need to establish who holds the copyright in it. If you hire an independent developer, it will be that developer. If the developer is employed by a company, the copyright belongs to the employer, so that is who you deal with. This does require software development to be part of the developer’s day-to-day job.

Hire a hobbyist who builds your website in the evenings and works as a manager at an Albert Heijn supermarket by day? Then you do not need to knock on the supermarket’s door for the copyright.

Bear in mind too that, if nothing is agreed, the copyright still sits with the programmer (or the programmer’s employer). That holds even on a bespoke project where you supplied detailed specifications throughout, sprint after sprint.

A services agreement that says nothing about copyright therefore does not help you. Only the author may then alter the software.

How to arrange the assignment of copyright in source code

So if you do not hold the copyright in the software, you may not in principle alter the website, app, game or bespoke software you have just invested heavily in. To avoid that, have the author assign the copyright in the source code to you.

You do that by deed: a written document signed at least by the party holding the rights, meaning the developer or the developer’s employer. Your signature as the client is sensible but not required. Since 1 January 2026 the agreement to transfer must also be in writing. The agreement and the deed can both sit in the services agreement. A transfer made orally, or by email without a signed deed, is not valid. What exactly changed in 2026 is set out on our page about assigning copyright.

Is your web or game developer on the other side of the world, or do you simply find it easier? The agreement setting out the assignment can also be signed with a digital signature, provided the method used is sufficiently reliable. DocuSign is a good example.

It also matters that the agreement describes exactly what the copyright is being assigned in. Where the developer assigns personally, since 2026 only what is expressly stated in the agreement passes, along with what necessarily follows from the nature of the assignment. Want to be able to alter, develop or sell the software? Then name those powers in so many words. One practical note: always have the actual source code delivered to you as well. Besides the right to alter the software, you need the code itself to build on. Otherwise you hold the right, but good luck using it on an incomprehensible file full of noughts and ones.

Licence or assignment?

There is a good chance the developer will not be keen on assigning the copyright. Agreeing to it means the developer may no longer use that source code either. For standard software it seems only reasonable that a developer resists an assignment. A licence is often granted for its use instead (more on that below).

Bespoke software is a different story. It was developed specifically for you, and you probably paid a good deal for it. It is not unreasonable, then, to ask the developer to assign the copyright to you.

Licence

If your developer is reluctant to assign the copyright, you can opt for a licence. Under a licence agreement the copyright stays with the developer. The licence agreement then sets out the terms on which you may use the software.

Be clear about what you want to use the software for, and record exactly that. Think of:

• the territory in which you want to use the software
• the period during which you want to use it
• whether you want to alter it, or have it altered
• whether you want the source code
• what happens to the source code if the developer goes bankrupt

It is also sensible to check whether the developer uses (or plans to use) existing software to build your website, app, game or bespoke solution, under a licence from a third party. Is that the case? Then check that it is not very expensive software. Those costs land on you. Make clear arrangements about them.

Open source software

With open source software the source code is made freely available. Anyone may distribute the software and add to or improve it, all under an open source licence. A well-known example is WordPress.

If you use it, or have it used, take account of the licence terms. A common condition is that improvements and changes made to the source code must themselves be released as open source software again.

Software developed on the basis of open source software can still give rise to copyright for the developer (or the developer’s employer). That happens where the developer’s additions are sufficiently original and creative. The points above then apply in principle, unless the terms of the open source software used require the modified source code to be released as open source.

Other copyright in your website or game

This article deals only with the copyright in the software, not with, for example, the design or the photographs on your website or the characters in your game. That copyright belongs to the designers of the website or game, or to the photographer. So make arrangements about copyright with them as well.

Our page about assigning copyright explains how.