Who owns the source code after delivery?

Oscar Bout · 15 Sep 2026

The source code of custom software is not automatically owned by the client upon delivery. In the Netherlands, the creator of software retains copyright by default, unless contractually agreed otherwise. This means that as a client, you must actively ensure that the transfer of rights is recorded in writing and explicitly stated in your contract. In this article, we answer the most frequently asked questions about source code rights, so you know what to look out for.

What determines who gets the rights to source code?

The rights to source code are determined by what has been contractually agreed between the client and the developer. Without written agreements, copyright automatically applies to the creator of the code, not to the party who paid for the development. This is established in the Copyright Act, which applies to all software developed in the Netherlands.

There are three situations that determine who ultimately gets the rights:

No contract or vague agreements: The developer retains the copyright to the source code.
License agreement: The client gets the right to use the software, but the developer remains the owner of the code.
Full transfer of rights: The client becomes the legal owner of the source code, including the right to modify, resell, or reuse the code.

The choice between these situations has major consequences. If you ever want to switch to a different vendor, expand the software, or inspect the code, you need full ownership as a client. Without that ownership, you are dependent on the goodwill of your developer.

Does source code automatically transfer upon software delivery?

No, source code does not automatically transfer upon delivery. Delivery of working software means you receive the end product, but that says nothing about the underlying rights to the code. The copyright remains with the creator, unless the contract explicitly states that it is transferred to the client.

This is a common mistake made by companies that are having custom software developed for the first time. They assume that paying for the development automatically means they become the owner of everything that is delivered. In practice, this is not legally the case.

What you do receive upon delivery if this has not been contractually arranged:

The right to use the software (usage rights)
The executable version of the program
Possibly documentation, depending on the agreements

What you do not automatically receive: the right to view, modify, or pass on the source code to a third party.

What is the difference between a license and ownership of source code?

The difference between a license and ownership of source code is the degree of control you have over the code. With a license, you get the right to use the software under certain conditions. With full ownership, you may freely use, modify, distribute, and transfer the code to others.

A license can be broad or narrow. For example, a license may be limited to use within one organization, for one specific purpose, or for a certain period. Once you step outside those boundaries, you are in breach of the license terms.

Full ownership gives you as a client:

The right to view and modify the source code
The freedom to engage a different developer for maintenance or expansions
The ability to resell or redeploy the software
Independence from the original vendor

For most companies investing in custom software development, full ownership is the wisest choice. It protects your investment in the long term and prevents you from being locked into a single party.

What clauses should be included in a software contract?

A good software contract contains at minimum a clause on copyright transfer, an escrow arrangement, and agreements on third-party components. Without these elements, you as a client run significant risks, even if the collaboration is going well at the time.

The following clauses are important to include:

Transfer of copyright: Explicitly state that all rights to the source code transfer to the client upon payment.
Escrow arrangement: Establish that the source code is held by an independent third party, so you always have access to it, even if the vendor goes bankrupt.
Indemnification against third-party claims: Ensure the developer is liable if intellectual property rights of third parties are infringed.
Description of what is being transferred: Specify whether this includes the full source code, documentation, test scripts, and other associated files.
Use of open-source components: Establish which open-source libraries are used and what license terms are associated with them.

Always have this contract reviewed by a lawyer with experience in IT law. Standard contracts from development parties are often drafted in favor of the vendor.

What happens to open-source code in custom software?

Open-source code in custom software falls under the license terms of the relevant open-source library, not under the agreements you make with your developer. This means that certain open-source licenses impose conditions on how you may use, distribute, or modify the software.

There are two types of open-source licenses you need to know:

Permissive licenses (such as MIT or Apache 2.0): You may freely use, modify, and distribute the code, including in commercial products. You are not required to make the source code of your own modifications public.
Copyleft licenses (such as GPL): If you distribute software that contains GPL code, you are required to make your own source code public as well. This can have major consequences for commercial products.

Always ask your developer for an overview of all open-source components used and their licenses. This overview, also known as a “Software Bill of Materials” (SBOM), helps you avoid legal risks and provides insight into the composition of your software.

How do you properly record source code transfer in a contract?

You properly record source code transfer in a contract by including a separate provision that explicitly states that all proprietary rights to the source code transfer to the client upon full payment. Vague formulations such as “the client owns the end product” are insufficient and lead to disputes in practice.

Use the following approach to make the transfer watertight:

Specify the rights explicitly: Name copyright, exploitation rights, and the right to modification explicitly in the contract.
Link transfer to payment: Establish that the transfer takes place at the moment of full payment, not only upon delivery.
Define what “source code” entails: Describe whether this also includes documentation, configuration files, and test scripts.
Arrange the transfer of future versions: If you expect the software to be further developed, ensure that future versions are also covered by the transfer.
Establish a delivery obligation: Describe at what point and in what format the source code will be delivered.

Also arrange an escrow agreement as additional security. In this arrangement, the source code is held by an independent party and released if the vendor is no longer able to fulfill its obligations.

How 3Bird helps with transparent source code agreements

At 3Bird, we believe that as a client you should always have full control over what you have built. Unclear ownership agreements are one of the biggest risks in software development, and we address this properly from the very beginning.

What you can expect from us:

Clear contracts: We always explicitly record ownership rights and source code transfer, so you know exactly what you are getting.
Transparency about technologies used: We document which open-source components we use and what licenses are associated with them.
Guidance by Dutch fractional CTOs: You always have a point of contact who guides you in your own language and translates technical choices into practical consequences.
Flexible teams: Our custom software development is set up so you can easily scale up or down, without being locked into a single vendor.

We work with a team of more than 30 experienced developers in Nepal, managed from the Netherlands, and offer all of this from €25 per hour. Want to know how we approach your software project and how we arrange the ownership agreements? Contact us at contact@3bird.nl or call +(31)75-7993038.