Employee or self-employed, the fate of intellectual property rights?

In a judgment of 3 June 2010 the Supreme Court ruled on the allocation of intellectual property rights on computer software written by a statutory manager of a commercial company who was not an employee of that company but rather a self-employed worker providing services to it. 

On 3 November 2008, the appellate court had come to the conclusion that the manager did not have copyright on the computer software. The court based its view on the presumption in article 3 of the Law of 30 June 1994, in which only the employer is deemed the assignee of property rights relating to computer software written by one or more employees or agents in carrying out their duties or acting upon instructions of the employer, unless a contract or the statutes provide otherwise. The court also argued that the property rights of computer software were part of the assets of the company, since the manager placed his services at the disposal of the company in order to accomplish the corporate purpose of the company, namely the development of software.

The Supreme Court rejected this position, arguing that the presumption that the employer acquires the intellectual property rights on software developed by employees during their employment cannot be extended to the statutory manager of a commercial company who is not an employee.

This judgment confirms that, if an employee becomes a self-employed worker (as a consultant or a director/manage/executive committee member), it is advisable to make a contractual arrangement regarding intellectual property rights.