Who owns the source code of custom software? Rights in Switzerland and Liechtenstein

At first, the source code belongs not to you but to the developer or their employer. The Swiss Copyright Act protects computer programs as works, as stated in Art. 2(3) URG. Protection arises when the software is written. No application or registration is needed.

Under Art. 6 URG, the author is the natural person who created the work. A company therefore cannot be an author itself. If the developer is employed by the software vendor, Art. 17 URG applies: where a program is created in the course of employment duties, the employer alone is entitled to exercise the exclusive rights of use. In your project, that is the vendor, not you.

Commissioning and paying for the software does not automatically make you the rights holder. Whether the contract counts as a contract for work under Art. 363 of the Swiss Code of Obligations or as a mandate under Art. 394 makes little difference here. What matters is what was agreed about the rights.

If there is no clear rule, the contract has to be interpreted. The question then is which rights the purpose of the contract requires. Lawyers call this the purpose-of-transfer principle. In case of doubt, the contract is read narrowly. That is usually enough for your own use, but not reliably enough for further development by another team.

In Switzerland, protection for computer programs expires 50 years after the author's death, under Art. 29(2)(a) URG. The question of who owns the rights therefore stays with your software for its entire life.

Liechtenstein reaches the same result but spells out more in the statute. The relevant law is the Liechtenstein Copyright Act, LGBl. 1999 No. 160.

Here too, computer programs count as works under Art. 2(3) URG. The author is the natural person who created the work, Art. 6 URG.

For employees, Art. 19(1) URG applies. If an employee creates a work in the course of their duties, the rights pass to the employer unless otherwise agreed. This rule covers all works, not just software.

The key provision for clients is Art. 19(2) URG. In other contractual relationships, the scope of the rights transferred is determined by the purpose of the contract unless otherwise agreed. What is a rule of interpretation in Switzerland is written into the statute in Liechtenstein.

In Liechtenstein, protection lasts 70 years after the author's death, Art. 32 URG. If a Swiss company works with a Liechtenstein vendor or the other way round, specify the governing law and place of jurisdiction in the contract.

A right of use lets you use the software. A transfer of rights makes you the rights holder. You will notice the difference at the latest when you want to change vendors.

With a simple right of use, you may run the software. Anything beyond that depends on whether rights have been transferred to you.

These nine points belong in every contract for custom software. Review the quote, the contract and the general terms together, because the rights clause is often hidden in the general terms.

Almost every modern application contains open source components. That is normal and usually unproblematic. But you should know which licences are involved. For many software products on the EU market, the Cyber Resilience Act requires a list of these components from December 2027, known as a software bill of materials or SBOM. Read more in our guide "Cyber Resilience Act: what applies to software from SMEs in Switzerland and Liechtenstein?".

With software escrow, the vendor deposits the source code with a neutral agent. You only receive it in agreed cases, for example if the vendor goes bankrupt or stops maintaining the software.

Escrow is worth it if you would not otherwise receive the source code and the software is critical to your business. Typical cases are industry solutions or customised standard software where the vendor does not release the code.

What you do not need: if you already hold the source code and the rights and have ongoing access to the repository, escrow is redundant. You would be paying for a copy you already have.

Escrow without verification is of little value. Outdated or incomplete code will not help in an emergency. Look out for these points:

Dependence on a vendor rarely comes from bad intentions. Usually a rule is simply missing. If any of these points apply, negotiate before you sign:

If your contract says nothing about rights, there is no need to panic. As long as the working relationship is good, this can usually be settled after the fact.

You do have some rights even without a contract clause. Anyone entitled to use a program may make a backup copy, under Art. 24(2) of the Swiss URG and Art. 26(2) of the Liechtenstein URG. To connect other programs, Art. 21 of the Swiss URG allows interface information to be obtained by decompiling the code, under narrow conditions. In Liechtenstein, Art. 24 URG covers this. Neither gives you a right to develop the software further.

Proceed in this order: