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Intellectual property. Key legal nuances

The material has been prepared by the EY’s Belarusian office. The company is an international leader in the field of audit, taxation, transaction advisory support and business consulting.

Copyright on software

In Belarus, software is protected as an copyright item. Copyright on software arises from the moment of its creation, no formalities are required to be complied with.

Copyright includes property rights (the right to use the software in any way or in any form, the right to remuneration) and personal non-property rights (the right of authorship and the right to a name). Personal non-property rights enjoy indefinite protection, whereas property rights are protected during the life of the author and 50 years after their death.

The author can only be a natural person whose creative work resulted in the software’s creation. Thus, a legal entity may not be considered the author of the software but may have the exclusive right to such.

Contractual relations with developers

In practice, companies often develop software as commissioned by their client. The legal formalization of such relationship depends on whether the developer is a natural or legal person.

Contractual relationship with an developer-individual

A developer-individual may enter into the following types of contracts:

  • employment contract
    In this case, the exclusive right to the software developed by the employee passes to the employer, unless the employment contract says otherwise.
  • a contract to create and use a copyright item
    Under this type of agreement, the developer undertakes to code the software in the future and transfer usage right to the client who is not his/her employer.
  • an agreement assigning exclusive rights
    Under such an agreement, the developer alienates in full the exclusive right to the software already created by him/her for the entire copyright duration. However, the author’s non-property rights are not transferred, and any agreements stipulating their transfer and/or restriction are invalid.
  • a copyright agreement
    Such a contract is essentially a license one and is made directly with the developer of the already created software. Under such an agreement, the copyright holder (licensor) grants the user (licensee) the right to use the already developed software for a certain time frame in the expressly provided ways.

Contractual relations with a developer-legal entity

Legal relations with the software developer-legal entity can be entered into via:

  • an agreement assigning exclusive rights
    Under such an agreement, the legal entity holding the exclusive rights to the already developed software alienates such in full such for the entire copyright duration. The conclusion of such a contract does not entail the termination of license agreements previously concluded in respect of the software in question.
  • a license agreement
    Under such an agreement, the copyright holder (licensor) grants the user (licensee) the right to use the already developed software for a certain time frame in the expressly provided ways.
  • a mixed contract 
    As noted earlier, the contract on software creation and usage envisaged by the Belarusian legislation can only be concluded with a developer-individual. For this reason, a mixed contract is concluded in cases where the developer is a legal entity hired to develop software and assign the exclusive right thereto to the customer; such a contract normally contains elements of a service agreement and an exclusive right assignment one.

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