On 20 March 2014, the Court of Appeal of Liège handed down a judgment on the requirement of having a document "in writing" for evidentiary purposes in cases relating to the assignment of a copyright protecting a computer program.

In 1999, Auctus, a consulting firm, had developed computer software capable of optimising the productivity of industrial processes by anticipating and managing the workload of these processes. To this end, Auctus had hired an external consultant to program the software (that is, to transcribe the method developed by Auctus into computer programming language (source code)).

In 2010, the consultant agreed to assign the intellectual property rights ("IP rights") relating to the software to Vion, a client of Auctus. Auctus disputed the assignment, claiming that the consultant was not the holder of these IP rights and was thus unable to assign them. After having an anti-counterfeiting seizure (beslag inzake namaak/saisie en matière de contrefaçon) carried out against the consultant, Auctus summoned the consultant before the President of the Commercial Court in Liège. The latter sided with Auctus, following which the consultant appealed the decision before Liège's Court of Appeal.

After having recalled that the Law on computer programs (now, Book XI, Title 6 of the Code of Economic Law (the "Law") does not derogate from the principle of Belgian copyright law according to which the holder of the right is the physical person who created the work, the Court of Appeal tried to identify that person. As Auctus failed to establish that one of its directors or employees had played an active role in coding the software, Auctus could not assert any undivided right in the software. The Court of Appeal therefore found that the consultant was the original holder of the rights relating to the software.

The Court of Appeal then examined whether the consultant had assigned its copyright to Auctus.

Before analysing the case as such, the Court of Appeal restated a few principles applicable to assignments of copy-right on computer programs. First of all, the fact that the consultant had designed the software as part of a commissioning contract and for remuneration does not automatically entail the assignment of the intellectual property rights to the sponsor. Further, in the absence of specific rules on commissioning contracts in the Law, the Copyright Law (now, Book XI, Title 5 of the Code of Economic Law) applies. Finally, given that Auctus (the sponsor) is not part of the cultural industry, and that the software is used for purposes other than cultural, less stringent rules of evidence apply to the assignment of rights. Only the rules requiring that the assignment be explicit and in writing as well as the principle of restrictive interpretation are applicable.

Following an examination of both parties' files, the Court of Appeal held that Auctus had sufficiently demonstrated the existence of documents "in writing" showing the consultant's express will to assign the rights. To this end, the Court of Appeal relied on the following documents:

  • The consultant's invoices which only included Auctus in the field reserved to clients;
  • The expert report attesting that (i) Auctus took a number of steps towards patenting the software in the Netherlands; (ii) the consultant was aware of these steps as he was the addressee of numerous e-mails on this topic and he had also taken certain steps in this regard; (iii) the e-mail address used by the consultant to take the first steps towards patenting belonged to the domain 'auctus-consulting.com', which shows, according to the Court of Appeal, that the consultant had acted in Auctus' name and not in his own;
  • The expert report highlighting e-mails addressed to the consultant (among others) in which Auctus had been attributed the ownership of the software;
  • The expert findings showing that the copyright reference on a series of the software's executable programs and of versions of the software's user manual, which had been 'Auctus' for a number of years, had recently been replaced by the consultant's name.

The Court of Appeal highlighted that even though a document "in writing" is necessary in order to establish the assignment of copyright, it is not required that an agreement be signed in this respect. Any type of written document can be taken into consideration. According to the Court of Appeal, the documents presented by the parties clearly mentioned Auctus as the holder of the IP rights relating to the software. The Court of Appeal therefore held that, when the consultant and Vion had entered into the disputed copyright assignment contract, the copyright on the software belonged to Auctus.

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