In principle, consultants and contractors will retain ownership of the intellectual property developed by them, unless otherwise agreed by the parties or provided for in the law.

The law is not explicit about the rights of consultants and contractors, who do not qualify as employees, with regard to technology and other intellectual property they develop. Generally, the parties may agree as to the rules which will apply to such rights. In the absence of a contractual framework, the technology or intellectual property generated by a consultant or contractor who was hired with the purpose of developing such items that will belong to the person paying for such work.

An independent contractor, including a consultant, owns the copyright in any work, unless there is an agreement in writing executed by the parties to the contrary.

Equally, an independent contractor has the right to patent an invention that they invented unless the contract between the contractor and the principal states otherwise.

It is often presumed that an independent contractor and a principal have a confidential relationship and thus the independent contractor has an obligation of confidentiality. However, specific confidentiality obligations are usually – and should be – included in the agreement between the parties.

In the absence of an agreement, consultants and contractors will retain ownership of the intellectual property developed by them, even if contracted and paid for by another party. The agreement can, however, be oral and implied; nevertheless, written agreements are recommended for evidentiary purposes. This is subject to the above mentioned exceptions,

In principle, subject to some exceptions, such as topography protection, and in the absence of contrary contractual or statutory provisions, consultants and contractors will retain ownership of the intellectual property developed by them, even if it is commissioned and paid for by another party.

In particular, reference can be made to the following rights:

Copyright

Where works are created by an author under an employment or a public servant’s contract, the economic rights may be assigned to the employer on the condition that such assignment is expressly agreed in writing and that the creation of the work falls within the scope of the contract. However, there are some presumptions, such as those regarding the assignment of economic rights in computer programs, that automatically favor employers.

The original author retains the moral rights on the work, since such rights are, in principle and as a whole, non-transferable and inalienable.

Patent

The patent applicant shall generally be deemed to be entitled to exercise the rights to the patent. Where an application for the granting of a patent has been made either for an invention unlawfully taken from an inventor or the inventor's successors in title or in violation of a legal or contractual obligation, the injured party may, in their capacity as owner, claim the transfer of the application or of the granted patent, notwithstanding all other rights or proceedings.

Design

If a design has been created on commission, the commissioning party shall, unless specified otherwise, be regarded as the creator, provided that the commission was given with a view to commercial or industrial use of the product in which the design is incorporated.

Copyrights

Except for software as mentioned below, the Copyright Law is silent regarding the ownership of works created by consultants or contractors, which will be decided by the courts on a case-by-case basis. The concept of "work for hire" is not recognized by Brazilian law.

Software

Unless otherwise agreed, the engaging party owns the rights to software developed during the services agreement whose purpose is research and development or which result from the nature of the service description. Unless otherwise agreed, compensation for the service shall be limited to the agreed remuneration.

Mask works

Unless otherwise agreed, the engaging party owns the rights to mask works developed during the services agreement in which the creative activity results from the nature of the service description or in which the service provider uses resources, technological information, industrial or commercial secrets, materials, facilities or equipment of the engaging party. Unless otherwise agreed, compensation for the service shall be limited to the agreed remuneration.

Patents

Inventions and utility models belong to the engaging party when they result from a services agreement performed in Brazil whose purpose is research or inventive activity or if the inventive activity results from the nature of the services. Unless otherwise agreed, compensation for the service shall be limited to the agreed remuneration.

Trademarks

There is no legal provision concerning the ownership of trademarks in a service agreement context. The rule is "first to file" if the filing does not infringe any legal provision.

Trade secrets

Not applicable for this jurisdiction.

It is customary for consultants and contractors to sign invention assignment and confidentiality agreements. In the absence of any written agreements to the contrary, the consultant or contractor retains ownership of any intellectual property rights. A patent assignment is not required to be in writing, whereas a copyright assignment is required by statute to be written.

Regarding industrial property, there are no special regulations or presumptions of ownership when consultants or contractors, so a contractual arrangement must be made with them regarding the transfer of intellectual property.

With regard to copyrights, Law 17.336 on Intellectual Property only provides for a specific regulation for custom-made software. In these cases, copyrights are deemed to have been assigned to the 3rd party on whose behalf they were produced.

Intellectual property ownership can be decided by the written contracts between the hiring party and the consultants and contractors. In the absence of a written clause regarding the assignment of developments, consultants and contractors will retain ownership of the intellectual property developed by them, even if contracted and paid for by another party.

The same rules used for employees are applied to contacts with consultants and contractors.

Public officers

Law 23 of 1982 and Law 44 of 1993 determine that economic rights derived from works created by public officers when complying with their legal and constitutional functions are presumed to transfer to the state. Public officers will hold the moral rights if it is not contrary to the rights and obligations of the corresponding legal entity. In any case, public interest will prevail.

Intellectual Property in projects financed by the state

Law 1753 of 2015 established that, in research projects or in projects for development of science, technology and innovation or communications and information technologies financed with public resources, the state may assign the intellectual property rights that it holds, free of charge, if it does not affect national security or defense. In addition, the state may authorize the transfer of such rights to the developer of the project. The terms and conditions of the assignment and transfer will be set forth in the corresponding agreement.

Customary for consultants and contractors to sign written agreements providing license to the other party.

Consultants and contractors own the intellectual property developed by them unless they have signed a written agreement stating otherwise.

In order for intellectual property ownership to transfer from a consultant to the customer, parties must have specifically agreed to do so. If such transfer of rights has not been agreed, the ownership to the intellectual property will in most cases remain property of the consultant.

It is common and recommended to include provisions regarding IP rights and confidentiality in consultant contracts.

There is no "work for hire" applicable to consultants and contractors under French law and, generally, intellectual property rights must be specifically assigned or licensed to the engaging entity or remain vested in the consultant or contractor.

Ordinance No. 2021-1658 of 15 December 2021 introduced a devolution of rights arising from software or inventions made by a person who is neither an employee nor a public agent, to the private or public legal entity carrying out the research that hosts them. The Ordinance therefore creates an automatic devolution of economic rights to the host legal entity carrying out the research.

2 decrees dated August 11, 2023 have now -finally- specified this financial compensation:

For inventors who are not salaried nor public agents to the private or public legal entity carrying out the research that hosts them, the provisions relating to the financial contribution for patentable inventions are set out in Decree no. 2023-770 of August 11, 2023 relating to the procedures for the devolution of industrial property rights on assets obtained by inventors who are not salaried employees or public servants hosted by a legal entity carrying out research. It defines the calculation of the incentive bonus paid to such inventors.

For software authors who are not salaried, nor public agents to the public legal entity carrying out the research that hosts them, the Decree no. 2023-772 of August 11, 2023 organizes the devolution of their economic rights. It defines the rules governing profit-sharing for these authors when they have participated, alone or as co-authors, in the creation of software whose economic intellectual property rights have thus been vested in the public-sector legal entity whose permanent research staff are public-sector employees, and when these rights are exploited by this legal entity.

Consultants and contractors will retain ownership of the intellectual property developed by them, unless otherwise agreed by the parties.

It is customary for consultants and contractors to sign written agreements. The ownership of copyright in the work is determined by the express terms of the agreement. If there is no express term of written assignment of intellectual property rights, consultants and contractors generally retain ownership of the intellectual property developed by them, even if it is contracted and paid for by another party.

Where a layout-design (topography) or registered design is created in pursuance of a commission, the person commissioning that design is the owner, subject to any contrary agreement between the parties.

Customary for consultants and contractors to sign written agreements. In the absence of a written assignment of developments, consultants and contractors will retain ownership of the intellectual property developed by them, even if contracted and paid for by another party. Please note that, under Hungarian copyright laws – as a main rule (with software and filming rights being the main exceptions) – only a license can be acquired from the author, and the copyright itself cannot be transferred in its entirety.

In case of a commissioned work product created by a consultant or contractor, Section 17 of the Copyright Act may be applicable, making it a work for hire. However, in all other cases, it is common to execute a general assignment, along with enabling provisions for a specific assignment of intellectual property.

Copyright Law provides that, if a creation is created in an employment relationship or is based on an order, then the party that creates such creation will be deemed the creator and copyright holder unless agreed otherwise between the parties.

Furthermore, Copyright Law stipulates that, if the creation is designed by someone and is manifested and conducted by another person under the lead of the person who designed such creation, the designer will be deemed the creator.

Patent Law provides that the party entitled to a patent is the inventor or a party that has received further rights from the relevant inventor.

Therefore, in a consultancy or contractor relationship, if the creator of a copyrighted work or patented invention is the consultant or the contractor, then the consultant or contractor is entitled to the copyright or patent unless agreed otherwise.

It then becomes a commercial negotiation point between the parties as to whether or not the copyright, patent or other intellectual property rights created by the consultant or contractor arising out of the relationship will vest with the consultant or contractor or whether it will vest with the client (ie, the party instructing the work).

If the copyright, patent or other intellectual property right is intended to pass to the party instructing the work, then the consultancy or contractor agreement must include an assignment clause or a separate declaration to be signed by the consultant or contractor as an attachment to the agreement where the contractor or consultant agrees to assign all intellectual property that was created as a result of the consultancy or contractor agreement to the party instructing the work.

The position regarding works done by persons who are independent contractors or consultants is different to the employer/employee relationship. Where the works are created as a result of and/or in the course of provision of the services by the independent contractor or consultant, typically the resulting intellectual property rights will be owned by the independent contractor or consultant.

Therefore it is necessary to ensure that appropriate provisions are included in the contract between the person commissioning the works or services and the independent contractor or consultant, to set out the intended position regarding ownership, transfer and licensing rights in relation to the resulting works. Such provisions should include appropriate terms providing for the waiver of moral rights where applicable.

The author is the first owner of the copyright in a commissioned work, unless the parties agree otherwise, either expressly or implicitly (note that this is not the case where the commissioned work is a design).

The state is the first owner of a work made by or commissioned for the state, or by an employee of the state in the course of and during the period of their service.

Therefore, in agreements with consultants or contractors, one should include a covenant in which the consultant or contractor assigns all intellectual property rights that they may have to the company/principal as otherwise such rights may vest with the consultant or contractor.

Law No. 81/2017, published on June 13, 2017, established the principle, previously supported only by case law, according to which any economic IP right originating from the performance of the contract belongs to the party retaining the contractor, as long as the inventive activity is expressly indicated as the object of the contract and specifically remunerated. Otherwise, they belong to the contractor. The parties remain free to agree otherwise.

In practice, consultants and contractors are often required to sign written agreements to assign all intellectual property related to their work for the company. Some courts have applied the concepts mentioned in "Employees" section above to consultants and contractors given the fact that relationship was an employment relationship due to misclassification (ie, disguised service/independent contractor agreement). It is recommended that written contracts expressly assign all intellectual property to the company retaining the consultant/contractor.

Please see the "Employees" section.

There is no specific legal framework under Mexican law for ownership of intellectual property developed by consultants and contractors. It is customary for consultants and contractors to sign written agreements. Absent a written present assignment of developments, consultants and contractors retain ownership of the intellectual property developed by them, even if contracted and paid for by another party.

Copyright

If a work has been made exactly according to the draft and under the strict guidance and supervision of another person, that person shall be deemed the author of the work.

Where a design is created in a consultants or contractors context, the copyright relating to the design shall belong to the party deemed to be the designer, in accordance with the provisions of the Benelux Convention on Intellectual Property.

Patent

The applicant shall generally be deemed to be entitled to exercise the right to the patent. Where an invention has been made by 2 or more persons working together by agreement, they shall have a joint right to a patent. Any person who has made an invention for which a patent application has been filed shall have a right to be mentioned as the inventor in the patent.

Design

If a design has been created on commission, the commissioning party shall, unless specified otherwise, be deemed to be the designer, provided that the commission was given with a view to commercial or industrial use of the product in which the design is incorporated.

Where a design is created in a consultants or contractors context, the copyright relating to the design shall belong to the party deemed to be the designer, in accordance with the provisions of the Benelux Convention on Intellectual Property.

Trade secrets

Article 7:678 sub I of the Dutch Civil Code provides that an employee who discloses information that should have been kept secret about theiremployer's company can be dismissed with immediate effect.

Post-employment, the disclosure by a former employee of trade secrets of the former employer can be interpreted to be a breach of the obligation following from Article 7:611 of the Dutch Civil Code to act as a good employee.

As a general rule if intellectual property is created by an independent contractor, it belongs to the contractor. However, this can be modified by express agreement and, in some cases, by implied terms. If copyright works or designs are commissioned works, generally the person commissioning the work will own the intellectual property rights in it.

The Copyright Act provides that, where a work is commissioned by a person who is not the author’s employer, the copyright shall belong in the 1st instance to the author unless otherwise stipulated in writing under contract.

Consultants and contractors own the intellectual property developed by them, unless they have signed a written agreement stating otherwise.

N/A

For copyright, in the case of a work commissioned by a person other than an employer of the author and who pays for it and the work is made in pursuance of the commission, the person who so commissioned the work shall have ownership of the work, but the copyright thereto shall remain with the creator, unless there is a written stipulation to the contrary.

For patent, the person who commissions the work shall own the patent, unless otherwise provided in the contract.

Industrial property rights

Under the Industrial Property Law Act, where an invention, utility model or industrial design is created in the performance of an employment contract or other contract, it is the employer or the contractor that is entitled to the right to obtain a patent for an invention or a protection right over a utility model or a right in industrial design registration, unless the parties agreed otherwise.

Copyrights

Under Polish law, copyrights to works created by consultants or contractors are not automatically transferred to the entity to which the consultants or contractors are related. In order to transfer the copyrights to this entity to the greatest possible extent, the contract should stipulate:

• The transfer of economic copyrights for specified fields of exploitation
• The transfer of the right to use and dispose of works derived from the work created by the consultant or contractor in specified fields of exploitation
• The authorization for the entity to exercise personal copyrights on behalf of the consultant or contractor

In principle, consultants and contractors will retain ownership of the intellectual property developed by them, unless otherwise agreed by the parties or provided for in the law.

It is customary for consultants and contractors to sign written agreements. As a general rule, the written form of the agreement is mandatory in order to prove the content of such agreement.

The rules for employees do not automatically extend to non-employees, such as consultants and contractors. Unless the parties specify the allocation of intellectual property rights in a written contract, in most types of contracts, the respective intellectual property rights would generally vest on the creator and would not automatically be transferred to the party who ordered the respective work.

Please see our comments in relation to employees, which are also relevant here.

If a piece of work is commissioned, the creator will generally be the owner of the copyright (subject to the information in the copyright section – ownership/licenses), unless otherwise agreed in writing.

It is commonplace for contractors and consultants to be subject to confidentiality clauses in Singapore.

Under the Copyright Act, contractual works are works created by authors based on contracts for work. If authors create contractual works, they grant their consent to use the works for the purpose arising from the contracts, unless otherwise agreed. Use for another purpose requires the consent of authors, unless otherwise stated in the Copyright Act. Authors are entitled to use the work by themselves as well as to license it, unless otherwise agreed and unless it is in conflict with customers' legitimate interests. These provisions are not applicable for audiovisual works.

Under the Act on Topography, if topographies are created within the fulfillment of duties under a contract, the rights belong to entitled contractual parties, unless otherwise agreed.

It is customary for consultants and contractors to sign written agreements. Absent a written assignment of developments, in principle, consultants and contractors will retain ownership of the intellectual property developed by them. However, depending on various factors such as price paid to consultants or contractors and degree of contribution in planning and developments, ownership in developments can be deemed assigned.

It is customary for consultants and contractors to sign written agreements. Absent a written assignment of developments, consultants and contractors will retain ownership of the intellectual property developed by them, even if contracted and paid for by another party.

It is customary for consultants and contractors to sign written agreements. Absent any written agreement, the general principle under Swedish law is that the consultants/contractors retain the ownership of the intellectual property developed by them, even if contracted and paid for by another party.

It is customary for consultants and contractors to sign written agreements. Absent a written assignment, third-party consultants and contractors will retain ownership of IP rights on inventions and creations developed by them.

It is customary for the party who engages a consultant or contractor to sign an agreement with such consultant or contractor setting forth which party will retain ownership of the work completed by the consultant or contractor. In the absence of an agreement:

• The consultant or contractor shall be deemed the author of the work, and the economic rights to such work shall be vested in the consultant or contractor
• The right to apply for a patent and the resulting patent shall be vested in the consultant or contractor, provided, however, that the party who retains the consultant or contractor shall be entitled to exploit such invention, utility model or design
• The right to apply for registration of the circuit layout shall be vested in the party who retains the consultant or contractor

The work-for-hire doctrine applies to relations with individuals acting as consultants or contractors. Similarly, as in employment relations, transfer of IP rights from consultants or contractors to work-for-hire objects must be formalized in writing. Otherwise, if no IP transfer provisions are included in the contract, by virtue of Ukrainian law, the IP rights to created objects would be deemed owned by the parties jointly.

Separately for copyrighted works, tangible IP rights to copyrighted works created by consultant or contractor are transferred to the customer from the moment of creation of the work in full scope, unless otherwise provided in the agreement.

Under Ukrainian law, the work-for-hire doctrine does not work in relations between legal entities. Therefore, no automatic transfer of IP rights between legal entities is possible under Ukrainian laws, and a specific mechanism of transfer of IP rights to deliverables following their creation must be provided in the agreement between such legal entities. Normally, transfer of IP rights to deliverables created under a respective agreement between legal entities shall be effected on the basis of an act of acceptance of services resulting in the creation of respective IP rights objects. In such a case, the IP rights will be transferred under such agreement from the moment of signature of respective act of acceptance. The act of acceptance shall provide for a sufficient description of deliverables to which the IP rights are assigned. The other mechanism of transfer of IP rights allowing sufficient identification of the deliverables to which the IP rights are assigned may be established by an agreement.

Please see point above in relation to employees. The same framework applies to all types of employment contracts including those with consultants and contractors.

For copyright in commissioned works, the contractor will own the copyright subject to a written agreement to the contrary. The preferred approach is for a commissioner to take an assignment of all existing and future copyright in the works and any associated materials or documents and obtain a waiver from the contractor of their moral rights in the same.

Without express written provisions to the contrary, legal title in an invention will vest in the contractor unless a court implies a term into the contract granting ownership to the commissioner.

It is customary for consultants and contractors to sign written agreements. Absent a written present assignment of developments, consultants and contractors retain ownership of the intellectual property developed by them, even if contracted and paid for by another party.

Contractor agreements with individuals – not contractors or consultants that are entities – must include the same notice described above under the DTSA for employee agreements in order for an employer of an individual contractor or consultant to preserve its right to recover exemplary damages or attorneys’ fees in a claim for misappropriation of trade secrets under the DTSA.