Rights to a programme in custom development: who owns them

Usually the question arises after the code has already been written and paid for: the client intends to refine the product, sell it or attract investment and discovers that formally they own nothing. The reason is that a computer programme is protected as an object of copyright, and by default the rights remain with the person who created it — the developer or their employees. A contract without a rights clause does not change this situation.

The article covers what to write in the subject matter of a custom development contract, how assignment differs from a licence, what rights exist at all and what happens to code, design, a database and open-source libraries. Separately — how to formalise the transfer of rights when changing a contractor, working with several clients, an employee leaving and due diligence when selling a business.

Who owns the rights to a programme if the contract is silent

A computer programme in Kazakhstan is an object of copyright, and the economic right initially belongs to the developer. Payment gives the client the result: a working product, access, support, but not the scope of rights. While the contract is silent, the exclusive right remains with the contractor, and the client uses the programme only within the limits directly arising from the transaction.

The question of ownership of rights is decided by the text of the contract, not by the logic of payment. By default the rights are vested in the author or their employer, and transfer is possible only through an express provision. Without a clause on the transfer of rights, the contractor has assigned nothing. Courts proceed from the literal content of the contract.

Rights to a programme in a custom development contract: what to write in the subject matter

The subject of a custom development contract must expressly name the software as an object of copyright and determine which rights to it the customer receives. The phrase "software development" is not enough: it does not show whether an exclusive right is transferred or only a right of use. Rights are described expressly: the transfer of exclusive or non-exclusive economic rights, indicating the ways of use, the term and the territory.

If the scope of rights in the subject is not defined, the parties risk interpreting it differently at acceptance and during operation. The subject links the rights through identification of the result: name, version, composition of modules, functional purpose, and the transfer is formalised in an intellectual property section with a reference to the subject.

What rights to software exist at all: personal and economic

Computer programs in Kazakhstan are protected as objects of copyright. From the moment the result appears, the creator of the code has personal non-property and economic rights. Personal rights are vested in the author inalienably, while economic rights freely participate in commerce.

Personal non-property rights confirm the creator's connection with the result: the right of authorship, the right to a name, the right to protect reputation. They cannot be waived, sold or gifted — they remain with the author in any transaction and on any change of customer. Even if the code has long been in production at the client's, the programmer's authorship does not disappear.

• the right of authorship — vested in the author forever and inalienable;
• the right to a name — is retained regardless of the transfer of economic rights;
• the right to protect reputation — is not subject to assignment;
• economic rights — may be transferred under an author's contract as exclusive or non-exclusive;
• the right to remuneration — an economic right, determined by the terms of the contract;
• the right to publication — exercised by the author when the result is released to the public.

Personal rights follow the author, proprietary rights follow the contract.

Assignment or licence: how the customer obtains rights to the software

The exclusive right to a computer program in Kazakhstan is proprietary and passes to the customer under an author's contract on the assignment of exclusive rights, or is granted under a contract on the transfer of non-exclusive rights (a licence). On assignment of exclusive rights, the customer becomes the right holder from the moment specified in the contract; state registration of such a transaction is not required in Kazakhstan. Under a licence, the right holder remains the right holder, and the customer obtains permission to use the program within the limits of the contract.

Assignment deprives the contractor of the ability to use the result and dispose of it, while the customer receives the full set of powers: to use, modify, distribute and transfer the right further. A licence does not grant such scope: it defines the manner of use, the territory, the term and the permitted actions, and anything not expressly permitted is deemed prohibited. Registration of rights to copyright objects in Kazakhstan is not mandatory, but it serves as evidence of ownership of rights in disputes.

• subject matter of the contract: full assignment of the right or grant of the right of use;
• scope of the customer's powers: disposal of the asset or use within specified limits;
• the fate of the contractor's right: loss or retention with the ability to grant licences to others;
• the ability to modify and further develop the code without the right holder's consent;
• transfer of rights to third parties and contribution to the charter capital;
• risks in developing the product beyond the agreed terms.

The scope of rights is determined by the contract; registration in the state register is not mandatory, but confirms the rights.

What is covered by the rights to a program: code, design, database, documentation

A computer program is protected as an object of copyright, but this protection does not cover the entire development. Access to the repository does not mean the transfer of all rights: a product consists of several objects, each with its own author and protection regime.

Rights to the code arise with the developers as authors by virtue of creating the work. Rights to the design and the database exist separately: the interface, graphics and data structure may be protected independently of the code and have different authors. Documentation, the technical specification, diagrams and instructions are separate objects.

The composition of rights is determined by which elements went into the result and what is recorded in the contract. If only the code is described, the customer will not acquire rights to the design, database and documentation even upon full payment. Rights are secured for each element, not by one general phrase.

If the contract says nothing about rights to the program, the customer receives the finished product for use, but not the object itself — they will not be able to dispose of it.

Rights to a program and open-source libraries: what the customer receives together with the code

If the program uses free libraries and third-party code, the scope of rights is limited by their licences: the customer's exclusive right extends to the part created by the contractor, but not to third-party components. Library licences apply independently of the contract with the developer.

Open licences are divided into permissive and copyleft. The former allow the code to be used in a closed product while retaining authorship notices; the latter require the derivative program to be distributed on the same terms, up to disclosing the source code of the custom development.

A licence review shows their compatibility with each other and with the customer's plans. A conflict of terms or a missed notice creates a risk of claims by right holders and of rewriting part of the product. The absence of information about components does not mean that there are no third-party rights in the code.

• a list of the libraries and their versions included in the build
• the licence texts of each component and the notice requirements
• the presence of copyleft terms and their effect on the closed nature of the code
• compatibility of the licences with each other and with the development contract
• the origin of code fragments taken from external sources
• documents confirming the contractor's rights to the transferred code

Another contractor continues the programme work: how rights are transferred

Computer programmes in Kazakhstan are protected as objects of copyright. Proprietary rights to the code pass to the client only if this is expressly set out in the contract with the developer. Otherwise, a change of contractor creates a conflict: the previous contractor retains rights to the modules it wrote, and the new one cannot lawfully modify them.

In the contract with the new contractor, the client needs to confirm the right to dispose of the programme: include a condition on the transfer of the source code in full, including comments, build schemes and configurations. Rights in the course of modification are set out separately: what is created anew, what is changed, and who owns the result for each block of work.

• Record in the contract the transfer of the source code and technical documentation in full.
• State that rights to the programme upon modification pass to the client at the moment the result is accepted.
• Determine who is responsible for the use of previously created modules and libraries.
• Obtain from the previous contractor confirmation that it has no claims to the transferred code.
• Set out the procedure for changing the developer and the scope of materials to be transferred.
• Establish the new contractor's obligation not to use the code outside the client's tasks.

Rights to a programme held by several clients: replication and exclusivity

Developers often conclude a standard contract with all clients with the same scope of rights. Exclusive rights arise only in the part expressly named in the contract. With general wording, the developer is entitled to transfer the code to the next buyer, including a direct competitor.

Exclusivity is achieved by a precise description of the scope: methods of use, territory, term and the right to sublicense. Replication without the client's consent is a violation if the contract restricts the transfer of the code to third parties.

Registration of rights to objects of copyright in the Republic of Kazakhstan is not mandatory, but it serves as evidence: it confirms who owns the version of the code and what terms of its use have been agreed.

• The list of rights transferred: methods of use, number of copies, territory, term.
• Prohibition on transferring the code to third parties without the client's written consent.
• A non-disclosure and non-compete condition in relation to similar products.
• The procedure for transferring the source code, builds and technical documentation.
• Recording the result of the work and registering rights in the state register as evidence.
• The developer's liability for unauthorised replication of the programme.

A dispute over rights to a programme: what the court looks at

Computer programmes in Kazakhstan are protected as objects of copyright. What matters is confirmation of who created the code and on what basis the rights passed to the client. Possession of a copy of the programme or of the source code does not prove exclusive rights.

The main evidence is the custom development contract. If it states that exclusive rights pass to the client, this simplifies the position. Without such a condition, the rights remain with the developer, and the client receives only the right of use to the extent set out in the contract.

The transfer of rights is confirmed by acceptance certificates recording the delivery of the result of the work. Their weight increases when the source code, description, distribution package or other medium is attached. Courts check not only the signing of the certificates but also the actual transfer of the code and the possibility of using it.

• a custom development contract with a condition on the transfer of exclusive rights or on their retention by the contractor;
• acceptance certificates recording the transfer of the result of the work and of the physical medium containing the code;
• source code, documentation and distributions that make it possible to identify the program;
• work assignments, correspondence between the parties, approvals of the technical specification and amendments;
• information on access to the repository, change logs and other technical traces of development;
• payment documents confirming payment for the work under the contract.

Rights to the program leave with the employee: what the customer should do

When a program was written by an employee, the key question is who the author is and who owns the economic rights. Under the Law of the Republic of Kazakhstan on Copyright and Related Rights, the rights to a work created in the course of employment belong to the employer, unless otherwise provided by the contract. If the employment contract or job description does not include an obligation to create code, the employee may challenge the status of the work as one created in the course of employment. That is why protection of rights begins with a review of the HR documents.

When a developer leaves, the rights do not disappear automatically, but access to the repository, server and documentation is often lost. If the code was stored on the contractor's personal resources, the customer loses the ability to use and modify it. It is important to record which items were created under the contract and where they are located.

• Review the employment contract, job description and work contract: whether there is a clause on a work created in the course of employment or on the transfer of rights.
• Record the composition of the code created, versions, dates and authors by way of acts, correspondence, assignments and access logs.
• Ensure that source code, builds and documentation are stored on the customer's resources, not on the developer's personal media.
• Formalise an acceptance and transfer of rights act and close access to the repository and infrastructure upon dismissal or termination of the contract.
• Send a written demand for the transfer of materials and confirmation of rights, keeping evidence of dispatch.
• If necessary, register the rights to the program with the authorised body as additional evidence of ownership.

Rights to the program in a business sale and investment: what is checked

When a company is sold or investment is raised, the rights to the program are checked: computer programs in Kazakhstan are protected as objects of copyright, and the buyer or investor assesses who owns the exclusive rights and whether there are any encumbrances. The rights to the program affect the transaction price: what is being acquired is an asset that can be used, modified and transferred.

The review includes an analysis of the chain of creation: who the author was, whether contracts were concluded with the developers, and whether works created in the course of employment were formalised. Without documentary consolidation of the rights, the asset is considered risky. For an investor, both the ownership of the rights and the absence of disputes with former participants or contractors matter.