Assignment of copyright: how it works

Anyone commissioning a logo, software, a text or a video often starts from a misunderstanding: “I paid for it, so it’s mine”. When it comes to copyright it is not that automatic. In Switzerland the right arises in the person who creates the work, and the commissioning party obtains only what the contract expressly transfers to it. Understanding how assignment works avoids finding yourself using content over which, formally, you do not hold all the rights. Let’s look at the mechanism in concrete terms.

Who holds the copyright

The pivot is the Copyright Act (CopA). The right arises automatically at the moment the work is created, without any need for registration or filing. The holder is always the natural person who created the work: the graphic designer, the developer, the photographer, the author of the text.

This has an important practical consequence. If a company commissions work from an external freelancer, the copyright does not pass automatically to the company by the mere fact of payment. An agreement governing the transfer of rights is required.

What can and cannot be transferred

The economic rights (of commercial exploitation): reproduction, dissemination, making available, modification, distribution. These can be assigned or licensed.
The moral rights: the right of authorship of the work, that is, to be recognised as the author, and the right to the integrity of the work. These remain tied to the person of the author and are not transferable in their essential core.

In practice: one can acquire the full right to exploit a work economically, but the author retains the personal link with their own creation. This is why a well-drafted contract also expressly governs any waiver of the right to have one’s name mentioned, within the permitted limits.

Assignment or licence: two different paths

Full transfer is not the only option. There are two main choices.

Assignment

With an assignment the author transfers the economic rights (or part of them) to another party, who becomes their holder. It is the typical solution when the commissioning party wants full and definitive control, for example over its own brand or over management software developed to measure.

Licence

With a licence the author remains the holder but authorises others to use the work within defined limits. The licence may be:

exclusive or non-exclusive;
limited in time, in territory or in manner of use;
free of charge or against a consideration (royalties or a lump sum).

The choice depends on the objective: those who want to acquire an asset permanently aim for assignment; those who grant use while retaining control prefer a licence.

The contract: where everything is decided

Since the transfer is not automatic, the contract is the only instrument that determines who may do what. A solid agreement should at least specify:

which rights are transferred (all the economic rights or only some);
whether the transfer is exclusive or not;
the temporal and territorial scope;
the right to modify the work and to create adaptations of it;
the right to assign to third parties the rights acquired;
the treatment of future works and subsequent versions;
the consideration and its terms.

Beware of a rule of cautious interpretation: in case of doubt, it is assumed that the author has assigned only the rights strictly necessary for the purpose of the contract. Silence, therefore, does not work in favour of the commissioning party. Better to be explicit.

Works created by employees

The case of the employee deserves particular attention. A specific regime exists for computer programs: the rights to software created by an employee in the exercise of their duties and in accordance with their contractual obligations belong, as a rule, to the employer.

For other categories of work (texts, graphics, creative material) this automatic rule is not equally broad. To avoid uncertainty, it is sound practice to insert into the employment contract a clause that expressly governs the ownership of the rights to works created in a professional context.

The most common mistakes

Anyone managing corporate content and creative work should avoid a few recurring traps:

thinking that a paid invoice equals the transfer of rights;
not regulating the relationship with freelancers and agencies in writing;
forgetting the right to modify, ending up unable to update one’s own logo or website;
neglecting the ownership of works produced in-house.

Our approach

At SIH ONE we help companies protect the intangible assets that are often worth as much as physical ones: brands, content, software. We analyse relationships with creatives and suppliers, set up clear assignment and licence clauses, and check that what the company uses every day is actually covered by the right rights.

Do you want to put your business’s copyright in order? Let’s talk about it with our legal desk.