Salaried copyright: What startups need to know about employer copyright

Why salaried copyright is so important for startups

For many startups and scale-ups, a large part of the company's value lies in intangible assets. Think of software, UX designs, marketing materials, datasets with creative selection, white papers, onboarding flows, presentations, visuals or other content that is being developed in the organization. As soon as such creations are protected by copyright, the question immediately arises: whose rights actually belong to?

In practice, it is often assumed that everything an employee creates automatically belongs to the employer. This idea is understandable, but legally it is more nuanced. Although Dutch copyright law has a regulation for work that is created as an employee, that regulation has been under pressure for a long time. A recent European ruling has made that discussion relevant again.

For tech companies, that's not just a legal detail. It directly affects the ability to exploit intellectual property, to license or transfer without discussion, and to convincingly demonstrate that the rights are well regulated in the event of an investment or takeover. Especially in a growth phase, you want to prevent doubts about the title of important IP assets.

What is employer copyright?

The premise of copyright is clear: copyright belongs to the creator of a work. In principle, that is the person who actually created the work. Moreover, copyright is automatically created by the creation of the work itself. This does not require any formalities.

The Copyright Act makes an important exception to this principle. Article 7 Copyright Act states that the employer is considered a creator when the work employed by someone else consists in producing certain works of literature, science or art, unless the parties have agreed otherwise. This regulation is usually referred to as employer copyright.

This practically means that in certain cases, the employer not only gets the rights, but even legally acts as a creator. That is a far-reaching construction. The employee who actually created the work is then, as it were, skipped.

This is attractive for companies. In theory, it ensures that the employer can dispose of the work without additional permissions or additional transfer documents. This is also in line with the idea that the employer pays for the work, bears the business risk and must be able to use the results in the company.

When does article 7 of the Copyright Act apply, and when not?

It is important not to read article 7 Copyright Act too broadly. Not every work that an employee creates is automatically subject to employer copyright law. To do so, a number of conditions must be met.

There must be a real employment relationship

The scheme only applies if there is work employed by someone else. This is in line with the criteria for an employment contract: employment, salary and authority. This relationship of authority is particularly important.

In principle, article 7 of the Copyright Act does not apply to freelancers and freelancers. The Netherlands does not have a general client copyright. If a startup has work created by an external copywriter, designer or developer, then the copyrights will not automatically go to the client. Outside specific exceptional situations, a written transfer will then be necessary.

This is an important difference for startups. In the initial stages, we often work with a mix of employees, freelancers and agencies. It is precisely then that the risk quickly arises that people think that all IP is properly placed in the company, even though this is not legally regulated everywhere.

The work must fall within the employee's position or assignment

For employees, article 7 of the Copyright Act also only applies to works that fall within the employee's job description. Work must consist in making certain works. In other words, it must be about creations that the employee makes as part of his employment and that the employer could also instruct him to make.

This is an essential limitation. In principle, an employee who creates his own creative work outside his job remains the copyright owner himself. Even if that work was created during working hours, this does not automatically change anything by copyright law. An employment law problem is not yet a copyright transfer.

For startups, this is relevant for functions that are broadly or fluidly arranged. In young companies, roles are often intertwined. A growth lead sometimes also makes copy, a product manager helps write content, and a developer may design a visual concept. The more clearly defined the job and assignment are, the stronger the basis for saying that certain work falls under employer copyright law.

Why article 7 Copyright Act has been under discussion for some time

The fact that employers must have access to works created by employees is not in itself very controversial. The discussion is mainly about how article 7 of the Copyright Act regulates this.

The crux of the criticism is that the employer is directly regarded as a maker under this provision. This is also known as fictional crafting. In doing so, the regulation deviates from the fundamental copyright principle that copyright belongs to the actual creator, i.e. the human creator of the work.

That tension is not new. It has been doubted for some time whether this construction fits well into the copyright system. This also contributes to the fact that other countries have a different approach. There are legal systems where copyright remains with the employee, while the employer can still dispose of the work through consent or tacit powers.

For Dutch practice, this discussion remained mainly academic for a long time. But that changed when the Court of Justice of the European Union ruled in a different context on the rights of creators and performers in employment.

The European development that has reopened the discussion

In 2025, the Court of Justice issued a judgment in a case about Belgian orchestral musicians in paid employment. Those musicians had neighbouring rights to their performances. The question was whether those rights could be transferred to their employer without their consent through regulations for a fixed annual allowance.

The Court ruled that such a mandatory transfer without prior consent is not allowed. According to the Court, the exclusive rights in question, subject to specific exceptions in Union law, cannot simply be granted to an employer by regulation outside the rightholder.

That opinion was formally about related rights of performers, not directly about employees' copyright. Nevertheless, the ruling is also relevant to copyright law. Neighboring rights are closely related to copyright and are similarly harmonised at European level. As a result, the Court's reasoning is not easy to ignore in discussions about salaried copyright.

The Court also made it clear that transfer to an employer is not necessarily impossible. A transfer in the employment relationship is possible, as long as there is prior consent. Member States also have room to lay down detailed rules on the form in which such consent is given. Consent can therefore be evidenced by an individual or collective agreement, for example, provided that it is sufficiently clear that the transfer has been accepted in advance.

This is an important signal for practice. It is not the idea that an employer can obtain rights that is under pressure, but especially a system in which rights end up with the employer without clear prior consent.

What does this mean for Dutch employer copyright?

That is exactly the question that is currently under discussion. The judgment was not directly about article 7 of the Copyright Act, nor about the figure of fictional creation. As a result, no definitive answer has been given to the question whether Dutch employer copyright is sustainable under European law.

Opinions vary.

A first approach is that article 7 of the Copyright Act is still defensible. This includes the fact that parties can make other agreements under article 7. The regulation is therefore not entirely mandatory. It also highlights previous European case law in which a rebuttable presumption of transfer in another context was considered admissible.

Another approach is more critical. From this view, it follows from the European line that the concept of copyright should be explained autonomously and uniformly and that concept, in principle, refers to the human creator. If Union law does not explicitly designate employers as authors, national legislation that does so could be problematic. From that perspective, it is also questionable whether the mere possibility to deviate contractually is sufficient to meet the requirement for prior consent.

For startups and scale-ups, the key point is not who will ultimately be right in this debate, but that there is uncertainty at the moment. And it is precisely in a company that you want to avoid uncertainty about intellectual property as much as possible.

Why contractual recording is now extra important

At Startup-Recht, we regularly see that intellectual property is well developed operationally, but is contractually defined too lightly. This is risky, especially when the company depends on the creative or technical output of employees.

Against the background of the current discussion, it is wise not to rely solely on Article 7 of the Copyright Act. A clear IP provision in the employment contract is a much safer route. This means that the employee transfers the copyrights and other relevant IP rights to the employer, and that the transfer is accepted by the employer.

The practical advantage is great. Even if a discussion later arose about the scope or sustainability of article 7 Copyright Act, it is in any case established that a contractual transfer of copyright in the employment relationship is in principle permitted. This reduces the chance that an investor, buyer or counterparty will ask questions about the chain of rights.

Especially in tech companies where a lot of creation takes place, this is not a formality. Think of software documentation, interface elements, marketing content, illustrations, manuals, visuals, templates, or other creative output that is used commercially. Once such work represents value, you want the legal basis to be as tight as the product itself.

Transfer is not the whole story: employees can also be protected

An important point that is often overlooked is that an employee does not necessarily lose all their protection mechanisms after the transfer of copyright. The European and Dutch regulations on copyright contract law actually provide for protection for authors and performers who may be in a weaker contractual position.

Two claims in particular play a role in this. First, there is the right to receive appropriate and proportionate remuneration for the exploitation of works that have been licensed or transferred. Secondly, there is a right to information about the operation and the income generated therefrom.

This is relevant for the relationship between employer and employee because agreements with employed authors may fall within the scope of this protection. In other words: even if the rights end up with the employer contractually, the employee can still claim copyright protection under certain circumstances.

This is an important point of attention for employers. A transfer clause alone is therefore not always sufficient to close all questions.

When does copyright contract law come into play and when not?

The protection of copyright contract law does not always apply in the same way. An important distinction is whether the employer operates the work independently, or is only the end user of the work created by the employee.

If the employer is an end user, applying this protection is not obvious. The classic example is the employee who writes financial reports for internal or regular use within the organization. In such a situation, there is no independent exploitation of the work as a copyright product.

It is different when it comes to works that the employer actually exploits. Think of illustrations that are used commercially, for example on products or in content that is marketed as independent exploitable work. In such a case, claims for, among other things, fair compensation may become relevant.

This distinction is very useful for startups and scale-ups. Not every copyrighted work within the company has the same commercial function. An internal deck, report or process document is legally different from creative assets that are directly part of the company's business model or commercial output.

What does this mean in concrete terms for tech companies?

For tech companies, salaried copyright is rarely a separate legal subject. It directly affects governance, fundraising, due diligence and commercial strength.

1. Identify who makes what

Distinguish between employees, freelancers, agencies, and other external creators. The legal route to ownership isn't the same for everyone. Especially with hybrid teams, ambiguity quickly arises.

2. Link creative output to clear functions and commands

The clearer it appears that making certain works is part of the job, the less discussion about it later. This not only helps under article 7 of the Copyright Act, but also in the contractual substantiation.

3. Include a clear IP provision in employment contracts

Relying on implicit assumptions is not a good idea. Contractually stipulate that copyrights and other relevant IP rights are transferred to the employer and that that transfer is accepted.

4. Look beyond ownership

In the case of works that the company actually exploits, consideration should also be given to the possible relevance of copyright contractual claims. Especially when it comes to creative functions, it is wise to consciously include that component.

5. Think ahead to investors and buyers

Due diligence not only looks at whether IP exists, but also whether the company has legal rights. Uncertainty about the basis of ownership can cause unnecessary friction there.

The most important takeaway for founders and legal teams

The core is dual. On the one hand, in the Netherlands, there is still a regulation that designates the employer as creator of certain works that employees make. On the other hand, European development has once again shown that this regulation is not undisputed and that the discussion about its sustainability has not yet been completed.

In practice, the wisest route is therefore clear: ensure explicit contractual transfer and be aware that copyright contract law can also continue to play a role when exploiting creative works. This prevents your company from building on assumptions that later arise.

This is not an unnecessary luxury for startups and scale-ups. The more innovative and creative the company, the greater the importance of a solid IP structure. Well-regulated rights give peace of mind to the operation, strengthen your position in negotiations and make the company more scalable. That's exactly what you want when you're building for growth.

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