Conflicts over the ownership of rights in disputes concerning IT products typically do not arise at the development stage, but rather when the product begins to generate revenue, is prepared for sale, undergoes legal due diligence, or becomes the subject of a corporate dispute. Until that point, parties often assume that if an IT product or software code has been created on commission or financed by a company, the issue of ownership is resolved automatically. However, practice in such disputes demonstrates the opposite. In the field of intellectual property, conflicts usually emerge precisely where the parties previously failed to distinguish between the author, the right holder, the user, and the person who merely organized or financed the creation of the relevant result.
Another characteristic feature of disputes over IT products is that they often extend beyond a purely domestic copyright dispute. In technology business practice, such conflicts frequently combine issues of ownership of proprietary rights, access to technical infrastructure, use of confidential information, compliance with licensing terms, and protection of trade secrets. WIPO materials on dispute resolution in the software sector emphasize that confidentiality, specialization, procedural flexibility, and suitability for cross-border relationships are of particular importance in technology disputes. For Ukrainian practice, this serves as a reminder that a dispute over software code is almost never limited to the code itself.
One of the methodological errors in such disputes is the perception of an IT product as a single legal object. In reality, a digital product almost always consists of multiple distinct intellectual property objects, each governed by different legal regimes. Its structure may simultaneously include a computer program, a database, graphical elements, technical documentation, textual content, visual solutions, as well as designations under which the product is marketed. Ukrainian law on copyright and related rights provides that protection of a computer program extends to programs expressed in source or object code, provided they are original, and such protection applies specifically to the form of expression. At the same time, a graphical user interface, a set of functions, data file formats, as well as ideas, principles, algorithms, and programming languages are not protected as forms of expression of a computer program. Therefore, determining who owns an IT product in the legal sense always requires prior clarification of which specific element of the product is in dispute.
The international legal framework confirms that this approach is not unique to Ukrainian law. Ukraine is a party to the Berne Convention for the Protection of Literary and Artistic Works, and has also acceded to the WIPO Copyright Treaty, Article 4 of which explicitly provides that computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention, regardless of the form of their expression. Additionally, as a member of the World Trade Organization, Ukraine is bound by the standards of the TRIPS Agreement, which likewise distinguishes between ideas and their expression. Accordingly, the Ukrainian approach to the protection of software code is grounded not only in national legislation but also in established international standards.
A relevant illustration is the judgment of the Court of Justice of the European Union in case C-406/10, SAS Institute Inc. v World Programming Ltd., where the Court held that the functionality of a computer program, programming languages, and data file formats used to implement its functions do not constitute a form of expression and are therefore not protected by copyright. The Court emphasized that granting copyright protection to functionality would effectively result in monopolization of ideas, to the detriment of technological progress and industrial development. In disputes over IT products, this approach has practical significance, as it underscores the need to distinguish protected code from unprotected functionality, algorithmic logic, or general concepts.
Another common mistake is equating the author with the right holder. Only a natural person who creates a work through their creative activity can be considered the author. A company cannot be the author of software code, but it may hold proprietary rights to it—fully, partially, or jointly with another party—if such follows from law or contract. Therefore, in an IT dispute, it is insufficient to establish who actually wrote the code. Ukrainian copyright law provides that the subject of copyright has the exclusive right to use the work in any manner, including reproduction and distribution, and that copyright arises upon creation of the work and does not require registration. Consequently, in disputes over software code, it is necessary to determine who holds the proprietary rights to use, modify, reproduce, distribute, and otherwise commercially exploit the code. This position is supported by the case law of the Supreme Court, which confirms that registration merely certifies authorship but does not create rights.
A decisive factor in such disputes is the legal regime under which the work was created. In the IT sector, this typically involves creation in the course of employment, creation under a contract for services, or assignment of rights to a pre-existing solution. General rules of Ukrainian civil law provide for joint ownership of proprietary rights between employee and employer, or between creator and заказчик, unless otherwise stipulated by law or agreement. However, specific provisions applicable to copyright provide for the transfer of proprietary rights to the employer or the commissioning party from the moment of creation, unless otherwise agreed. Since software is protected as a work, the interaction of these provisions becomes crucial in disputes over code.
From this follows a key practical conclusion: the mere fact of financing development or paying for programming services does not in itself determine ownership of rights. Payment establishes a commercial relationship, but does not eliminate the need to determine what exactly was created, under what legal regime, how the result was identified, and to what extent the parties agreed on the allocation of proprietary rights. This is particularly important in cases where a product was developed in stages, by multiple contributors, using pre-existing code or third-party components. In such cases, a general clause stating that “all rights belong to the заказчик” may prove insufficient if the contract and technical documentation do not clearly define the subject matter. Since the law protects the form of expression rather than the idea or function, precise identification of the object becomes central to the dispute.
It is also necessary to distinguish between assignment of proprietary rights and the granting of a license. In practice, these legal constructs are often confused, although their consequences differ fundamentally. Assignment entails a transfer of title, whereas a license merely grants permission to use the object within defined limits and conditions. In software disputes, this distinction is critical, as access to a code repository, server infrastructure, or accounts does not equate to ownership of exclusive rights. Moreover, Ukrainian law expressly requires that agreements concerning the disposal of intellectual property rights be concluded in written (including electronic) form; failure to comply renders such agreements null and void. This requirement is also reflected in copyright legislation. Accordingly, the absence of a properly structured contractual framework in the IT sector is not a minor technical defect, but a significant legal vulnerability.
For this reason, courts place primary importance not on general statements by the parties about joint work on a product, but on a coherent chain of evidence. In disputes over software code, such evidence typically includes technical specifications, functional descriptions, acceptance certificates, task management records, version history in code repositories, internal correspondence, documents relating to the engagement of employees or contractors, and contractual provisions clarifying whether the work involved creation of a new object, modification of an existing solution, or merely granting of usage rights. Judicial practice confirms that incomplete establishment of facts and improper evaluation of evidence are common grounds for overturning decisions in intellectual property disputes. Accordingly, success in IT disputes depends not on assertions of involvement in a project, but on the ability to demonstrate a continuous, documented chain of creation and transfer of rights.
In conclusion, disputes over IT products and software code rarely reduce to determining who first wrote a particular piece of code. At their core lie broader issues: what object was created, who authored it, under what legal regime it arose, what the contract provides, and whether ownership of proprietary rights is properly documented. Therefore, the issue of ownership should be addressed at the outset of a project, rather than after the product enters the market. Otherwise, even a commercially successful technological solution may prove to be a legally unstable asset, requiring protection through litigation.