NO COPYRIGHT ON SOFTWARE?!
“Where there is software, there is copyright.” At least, that’s what you tend to think when it comes to unauthorized use and infringement. That was also the subject of the dispute between BX, a software supplier, and CST, a manufacturer of storage tanks and silos for the oil and gas industry, among other things. The parties initially worked together but then fell out and made claims against each other. In that context, party BX carried out its ICT work for CST. This consisted of developing and maintaining a software program that automated the design and calculation of the requirements for storage tank roofs. Various existing computer programs were linked together, resulting in an exchange of output, which worked much more efficiently.
Copyright claim
One of BX’s claims was that CST should no longer use or edit the software without BX’s permission. BX invoked its copyright on the software it had developed. You would think that the developer would also have the copyright. But then it is good to know what criteria you need to test in order to speak of a ‘copyrighted work’.
The work test
So the judge wanted to hear whether the software – as a ‘work’ – had its own original character and also bore the personal stamp of its creator? In other words, whether it was the author’s own intellectual creation. This is known as the work test. But was this requirement met? This was the question the Rotterdam court had to decide in its judgment of October 15, 2025 – C/10/681761 / HA ZA 24-576.
No basis for the copyright claim
BX had to admit that her IT work mainly consisted of setting parameters and adjusting settings of existing software applications. According to CST, as the user of the software program, this could only be developed in one way. And that the software would not have been any different if another programmer had created it. When asked at the hearing, BX confirmed that it could not be done any other way. So there could be no question of free and creative choices in the design of the work – an interface. This means that there is no basis for the claim under copyright law.
What also did not help was that BX had already invoiced the interface and it could not be made clear whether CST would still owe a separate fee for use, especially since the source code had already been provided prior to the collaboration with CST. For that reason, the grounds for unlawful act or unjust enrichment also failed. What ‘homework’ should have been done in advance? Here are a series of relevant preliminary questions.
Relevant preliminary questions regarding copyright on software
- Is it software? Software usually has source codes, which are commands that programmers can read. These lead to ‘object codes’, which are zeros and ones that computers can read.
- Are there also concrete technical documents?
- Is it more than just an idea (“app for scheduling appointments”) or a wish list?
- Does it contain your own creativity?
- Is there a clear “style” in the software, i.e., your own choices in design and structure?
- Is there a unique way of developing functions? In other words, things that you would not get exactly the same way if someone else were to create it entirely from scratch.
- Are you or your company the actual creator? Is that an employee as a software developer or a freelancer/self-employed person who holds the copyright and would still have to transfer those rights if invited to do so? Then employment or contract agreements come into play for review.
- And where is the software located? In Github? How is version control handled; are there timestamps, backups, emails, or other documents about the development?
- Was there actual copying, and not just “the same idea”? Does the other party’s software resemble yours not only in terms of idea, but also in terms of actual implementation?
- Do you have material to make a proper comparison? Is there a report or explanation from a technical expert that clarifies the similarities (party expert)?
- Did the other party have access to your software? Was the other party able to see your software or documentation? Or was there co-development?
Do you have questions about copyright on software or do you have other legal questions about intellectual property rights? Our specialized attorneys are happy to assist you. You can contact them by phone and / or e-mail.
