Outsourcing software development has become a strategic tool for Swiss companies seeking cost efficiency, scalability, and access to global talent. While traditionally associated with support and maintenance services, today’s outsourcing landscape increasingly focuses on high-value software engineering and product development.
Poland and Ukraine have emerged as leading destinations for such services, offering technical expertise, competitive pricing, and robust educational systems that produce highly skilled IT professionals.
Outsourcing across borders raises multifaceted legal questions. Particularly regarding intellectual property (IP) ownership and related contract structuring. When code is written outside Switzerland, questions arise about who owns the resulting IP, how rights are transferred, and whether local laws adequately protect the interests of the outsourcing Swiss company. These issues are often underestimated or addressed too late, leading to costly disputes or gaps in protection.
This article focuses on the legal pitfalls related to copyright ownership in cross-border software development outsourcing, with a particular emphasis on Poland and Ukraine. It explores how Swiss companies can structure contracts to safeguard their copyrights, navigate jurisdictional differences, and ensure that innovation remains securely in their hands.
1. Swiss Legal Framework: Copyright Ownership and Transfer
Copyright Ownership Under Swiss Law: Core Principles and Practical Implications
In Switzerland, software development agreements are typically governed by either mandate contracts (Auftrag) or contracts for work and services (Werkvertrag) under the Swiss Code of Obligations. The distinction affects liability, deliverables, and termination rights. While a mandate involves an obligation to act with due care, a contract for work and services requires the delivery of a specific result, such as a functioning software product.
However, when it comes to IP ownership, this contractual classification plays a limited role. Outside of employment relationships, Swiss law does not automatically transfer copyright in software to the commissioning party. Instead, the individual developer retains the copyright by default, unless it is explicitly assigned by contract. Swiss law even clearly states that the transfer of ownership of the work copy or original (e.g., source code) does not automatically include copyright usage rights.
This principle also applies where the commissioning party engages a corporate entity to develop software, i.e., Swiss copyright law maintains that only natural persons (individual developers) can be the original authors of a work. Legal entities cannot originate copyright. Accordingly, the development company must secure valid assignments of rights from its employees or subcontractors who created the software. Only once these rights have been transferred to the company can the company assign them to the commissioning party. This necessitates a two-tiered transfer structure. It is therefore the responsibility of the commissioning party to ensure that its contract with the development company contains appropriate representations, warranties, and obligations confirming that this chain of title has been properly established and documented.
AI‑Assisted Software Development: Legal Uncertainty and Contractual Safeguards
Under current Swiss copyright law, it remains unresolved whether and under what conditions AI-generated software code can qualify as a protected work. Copyright protection generally requires a human intellectual creation with individual character. As a result, software produced entirely autonomously by an AI system is, according to prevailing scholarly opinion, not protected by copyright. Such unprotected code may in principle be used freely, provided no third-party rights are infringed.
The copyright qualification of AI assisted software depends decisively on the extent of human involvement in the creation process. Protection requires that a human makes creative choices that shape the final output. In Swiss legal scholarship, there is increasing debate about whether, and at what threshold, substantial human contributions, such as highly specific and creative prompting, iterative steering of the generation process, or deliberate selection, combination, or modification of AI generated code may suffice to establish copyright in the resulting software. The exact level of human influence required remains unsettled and there is currently no established case law. As a result, there is considerable legal uncertainty as to whether a particular AI assisted output is protected.
In practice, the legal uncertainty surrounding AI-generated software is often addressed through contractual mechanisms such as assignments or transfers that cover all rights in the deliverables, including rights in AI-assisted or even non-copyrightable outputs. While this approach ensures that the commissioning party receives comprehensive usage rights (which might be sufficient in some cases), it does not resolve the more fundamental issue that outputs falling below the threshold of copyright protection are not subject to exclusive rights.
Further, developers typically provide warranties and representations confirming that the deliverables do not infringe third-party rights and are free from unexpected open-source or otherwise restrictive licensing obligations. These assurances help mitigate the key risk that AI-generated code may inadvertently incorporate or resemble protected material.
Assignment of Copyrights: Scope, Formalities, and Drafting Considerations
Copyrights may be transferred either in part or in full. A full transfer, known as a complete assignment of rights (Gesamtrechtsübertragung), grants the acquirer the legal position of the original author, who retains only the rights stemming from moral rights (explained below). This includes the transfer of all transferable sub-rights, even if the agreement does not explicitly list each one.
Copyright consists of various sub-rights, which can be specified depending on the intended use. In practice, meaning across all types of copyright works, authors often transfer only selected rights tailored to the acquirer’s intended use. For example, excluding the right to produce copies of an original painting. Swiss copyright law therefore presumes a limited assignment: the transfer of one copyright sub-right does not automatically include other sub-rights unless explicitly agreed (Zweckübertragungstheorie). However, this rule of interpretation applies only where there is uncertainty about the scope of the agreed assignment. This is for example the case when, based on contract interpretation according to generally applicable principles under Swiss law, it is unclear whether a full assignment of rights or only a partial assignment is intended. In such case of uncertainty, the assignment of copyrights must be interpreted restrictively and based on the purpose of the contract, in the sense that, in cases of doubt, the non-transfer of individual partial rights is to be assumed or the assignment is to be interpreted as limited in terms of scope, duration, and content. Therefore, the respective assignment clauses have to be drafted clearly to avoid any ambiguity in interpretation leading to a potential limitation of assignment of copyrights.
Moral rights are recognized in Switzerland and cannot be transferred or assigned as such among the living, since they are bound to the person of the author. However, they can be waived to the extent that the author’s personal rights are not contravened. Since only the author themselves can waive moral rights, if contracting with a development company, the commissioning party has to include appropriate representation, warranties, and obligations that the development company has obtained such waiver of their employees and subcontractors.
Taking into account the above, although under Swiss law, no specific form is required for the transfer of copyrights, it is highly advisable to conclude written agreements governing the assignment of copyrights.
This framework provides a clear basis under Swiss law for structuring software development agreements and securing IP rights. However, when outsourcing across borders, additional layers of complexity arise.
International Dimension: Application of the Swiss Private International Law Act (IPRG)
When software is developed in another country, the international dimension of copyright transfer becomes relevant. Under Swiss private international law, the law of the country where protection is sought (Schutzlandprinzip /“protection country principle”) not only governs the scope of protection but also the transfer modalities of intellectual property rights.
While parties may choose Swiss law to govern their contract, this choice only applies to the contractual (obligational) aspects. The effectiveness and formal requirements of the transfer itself are determined by the local law of the relevant jurisdiction. As a result, mandatory provisions of the local law, such as requirements for registration or specific formalities, must be observed to ensure a valid and enforceable transfer.
This means that a choice of law clause in the underlying assignment agreement cannot override the application of the protection country’s law to the transfer of rights. If software is developed in Poland or Ukraine, the transfer of copyrights (and other IP rights) must comply with Polish or Ukrainian law respectively.
The next sections explore this international dimension focusing on Poland and Ukraine and highlights key legal and practical considerations to ensure that IP ownership is properly secured across jurisdictions.
2. Polish Legal Perspective on Copyright Ownership and Transfer
Statutory Framework for Copyright Assignment and Fields of Exploitation
Under the Polish copyright law for the economic copyrights to be effectively transferred the copyright assignment agreement needs to obligatory list the so-called “fields of exploitation”. Standard such fields indicated in the Polish Copyright Act include (1) fixing and reproducing a work (2) trading in an originals or copies of the object on which a work is fixed, (3) other forms of distribution of a work. These are exemplary fields of exploitation and they can be adapted to a particular case and business relation (by removing some or adding new ones). At the same time, it is considered not sufficient to simply indicate “all fields exploitation” without naming them. Therefore, it is crucial that the agreement lists at least one such field to ensure the effective assignment. The transfer of copyrights is limited to such given field(s) of exploitation. From assignee’s perspective, it is recommended to include broad fields of exploitation to ensure the copyrightable works will be fully owned and can be fully used by them.
If no fields of exploitation are listed, no copyrights transfer occurs and the assignor remains the copyrights owner. However, it does not mean that the assignee cannot use the relevant copyrightable work at all. The Polish copyright law provides that when the copyrights clause is not clear (which is the case when no fields of exploitation are listed) it is considered that the copyrights owner has granted an implied license. The institution of an implied license is not clearly regulated however, it is generally accepted that (as a result of other default provisions of the Polish Copyright Act) such an implied license is (1) limited to using the work strictly for the purposes of the relevant agreement, (2) limited to 5 years and (3) does not allow for sublicenses to be granted.
The above rules should be most importantly taken into account when drafting civil agreements, i.e., the mandate or work contracts, and particularly the popular B2B contracts.
Derivative Rights: Modification, Adaptation, and Contractual Extensions
Even an affective transfer of economic copyrights under Polish law does not, as a rule, allow the assignee to further modify the relevant work(s). To ensure that the assignee can legally use a derivative work and make adaptations and modifications of the works to which they have become the copyright owner the assignment agreement needs to explicitly indicate that. The assignment agreement shall state that the assignor authorizes the assignee to exercise the derivative rights and create derivative works as well as allow the assignee to grant such authorizations further.
In practice, it is also usually accepted to list the right for modifications as one of the fields of explanation, however, the preferable option is to have explicit regulation referring to the derivative rights.
Moral Rights in Poland: Non-Transferability and Market Practice
Similarly, as under Swiss law, in Poland the moral rights of the author are non-transferrable. In reference to these, the market standard is to include author’s irrevocable obligation not to perform the moral rights (sometimes under a contractual penalty). In case of agreements with copyrights owners not being the original authors the relevant representations and declarations clauses confirming that the corresponding obligations were imposed on the original authors should be included.
However, in practice, the enforcement of moral rights is rather rare and should not lead to a significant limitation of the use of the relevant copyrightable works.
Copyright in Employee-Created Works: Scope and Default Transfer Mechanisms
The Polish copyright law provides for extra provisions in reference to copyrights created by an employee in favor of the employer. The copyrights to the works created by an employee are, under some conditions (below), assigned to the employer by default even when the employment agreement does not include any copyright clause. In addition, though partly debatable, it is generally assumed that such default transfer covers also the right to exercise the derivative rights i.e., right to modify the work, however the moral rights stay with the employee.
As mentioned in the paragraph above, other contracts, in particular B2B contracts, do not ensure such copyrights transfer by default.
The scope of employment copyrights transfer is defined not as in case of the “standard” copyrights assignments described above, by the fields of exploitation, but by the obligations associated with a particular job position. The employer owns the copyrights to the works created by the employee but only to the works are the results of the performance of their work duties. Therefore, it is strongly recommended that the employment agreements list the employment obligations broadly and in detail. Otherwise, the scope of the transfer would be defined by the duties “typical” for the employee’s position. For example, if a creative accountant develops a creative logo or drafts a script for marketing materials and it is then used by the employer in its business, the accountant remains the copyright owner of such materials and might be entitled to additional remuneration for such use as such marketing tasks are not considered to be typical duties of an accountant. If the same materials were created by a person employed as a “marketing specialist” the situation would be different and the default assignment to employer would likely be applicable in such case.
The default assignment of copyrights to the employer is conditional upon employer’s acceptance. However, no official acceptance procedure is necessary i.e., if 6 months pass from the delivery of the work it is assumed that the work has been accepted without reservations.
AI-Considerations
Currently, under Polish copyright law, outputs generated by artificial intelligence are generally not considered eligible for copyright protection. This is due to the requirement that a copyrightable work must result from human creativity, as set out in the statutory definition; only natural persons can be recognized as authors. Consequently, works produced solely by AI are not protected by copyright.
In cases where AI serves purely as a supportive tool in the creative process, the issue is more complex and remains subject to debate. Polish law provides no explicit guidelines regarding such situations, leading legal scholars to consult interpretations from other jurisdictions, such as the United States. The key consideration is whether the work in question fundamentally embodies human creativity (with AI functioning only as an auxiliary instrument) or whether traditional elements of authorship (such as selection and arrangement) were indeed conceived by a human and merely implemented by the AI. This assessment depends on various factors, including the operational characteristics of the specific AI tool, the manner in which it was employed, and the nature and extent of the human input involved. Accordingly, each case requires individual analysis.
While it is anticipated that AI-generated outcomes may receive certain forms of legal protection in the future, such protection may not necessarily fall within the scope of copyright law.
To effectively manage contractors’ use of AI tools, many companies now adopt internal privacy policies that regulate such usage and require contractors to comply through contractual obligations. Additionally, it’s advisable to include clauses (either within the contract itself or in a referenced privacy policy) stating that only company-approved AI tools may be used. Depending on how the AI tool is utilized, contractors should also avoid entering certain types of data (such as trade secrets, personal information, or intellectual property) into prompts as appropriate.
Polish Private International Law: Determining the Applicable Law in Cross-Border Assignments
In the case of the interjurisdictional contracts the determination of the applicable law governing the copyrights transfer is a complex issue. It depends on a few characteristics and requires analysis of both international regulations as well as the Polish private law.
Hence, the response to a question which law should be applicable to determine the effectiveness of the copyright assignment from the Polish contractor to the Swiss company is not straightforward. However, despite the fact that some doubts might be raised in this regard, following the rules of the Polish private international law, it is most commonly accepted that in reference to the international copyrights transfers the governing law would be the law of a state for which protection is claimed (lex loci protectionis) i.e., the law of the state for whose territory protection is claimed.
Thus, in the case when the rightholder exercises an intellectual property right (including copyrights) in Poland, the applicable law in reference to the creation, content, termination, transfer and disposal of such right is the Polish law. This is because the Polish law is the source of such relevant intellectual property right and the territory of Poland is a place of its protection (locus protectionis).
According to this approach, the principle of territorialism also applies to the assignment of intellectual property rights for which the source is the Polish law i.e., if the copyrightable work was created in Poland. The parties to the copyrights assignment agreement cannot make an effective choice of another law in this respect (as indicated in the part concerning the Swiss perspective above, such choice can be effective only for strictly contractual obligations, not copyright). Therefore, in a scenario relevant for this article (Swiss company outsourcing software development to Polish contractors) the requirements of Polish copyright law (described above) should be taken into account when drafting agreements between Swiss company and the Polish contractor.
On the other hand, in the case of foreign employees, intellectual property rights related to the employment relationship are subject to the law applicable to that relationship.
3. Ukrainian Legal Perspective on Copyright in Software Development
Software Ownership Basics
Ukraine’s IT sector has been one of the country’s standout industries for years, and software outsourcing has been a big part of that story. That commercial reality has also shaped its copyright law that has undergone several iterations of reforms to become a much more software business friendly regime.
One of the most significant changes for software customers is the default allocation of economic copyrights. Under current Ukrainian law, unless the contract provides otherwise, exclusive economic rights to software created by employees or under a commissioned arrangement generally vest in the employer or customer from the moment of creation. That is particularly important in the Ukrainian IT sector, where development work is often performed under services arrangements rather than traditional employment contracts. From a customer’s perspective, the new default rule is therefore more practical than under the earlier regime.
That said, the statutory default is only a starting point. In a typical outsourcing structure, customers often contract with a development company, not with the individual developers who write the code. The customer therefore still needs a reliable chain of title from each contributor to the vendor and from the vendor to the customer. For that reason, the contract should do more than state in general terms that “all IP belongs to the customer”.
Assignments and Contract Logistics
Under Ukrainian law, an assignment or transfer of copyright must be in writing. The agreement should clearly state whether the transfer is full or partial, what rights are being transferred, and, if relevant, any territorial or use limitations. Ukrainian law allows rights to be split by country or by type of use, so broad drafting matters if the customer wants a truly global and unrestricted result. Importantly, rights that are not clearly transferred may be treated as having been left with the author, and agreements dealing with non-existing rights can be treated as invalid, so the drafting needs to be precise.
From a customer’s perspective, the cleanest position is a transfer that takes effect from the moment of creation. In practice, however, this is often where negotiations get difficult. Service providers usually prefer to tie transfer to payment, or sometimes to the signing of an acceptance certificate or similar delivery document. That is understandable from the vendor’s side, but it is less convenient for the customer because ownership may depend on proving a later event, such as payment being made. If ownership ever has to be enforced or evidenced later, that extra layer can make life harder. Customers will generally prefer transfer on creation, or at least a drafting structure that leaves no uncertainty as to ownership at any stage of the development process.
The evidential side should also be considered carefully. In software projects, rights are easier to protect when the customer can show clearly what was created, when it was created and what was intended to transfer. That is particularly important where deliverables evolve incrementally and are often built in short development cycles. In practice, that means the scope of work should be documented carefully, and the contract should be supported by a workable mechanism for identifying and tracking the relevant outputs (e.g., through specifications, sprint materials, commit history, acceptance records, etc.). Ultimately, the clearer the documentary record, the easier it will be to demonstrate both the scope of the deliverables and the rights acquired in them.
Payment terms also require drafting attention. Under Ukrainian law, authors have a statutory right to remuneration for the transfer or assignment of rights, and that right cannot be waived or assigned away. Therefore, contractual documentation should expressly address this matter. In practice, this means the payment provisions should make clear whether the service fee already includes the author’s remuneration for the IP transfer. Leaving the position vague is risky, as it opens the door to later arguments that the rights transfer was not properly paid for or not properly documented.
Finally, since so many Ukrainian outsourcing companies use individual contractors rather than employees, the subcontracting piece should also be dealt with expressly. The main contract should require the vendor to procure back-to-back IP-related terms from all developers, freelancers and other contributors, including rules on transfer timing, scope of rights, remuneration, confidentiality and use of third-party tools. In other words, the customer should not have to rely on assumptions about the vendor’s internal paperwork. The contract should make the vendor responsible for delivering a complete and reliable chain of title.
Moral Rights Considerations
Like in many civil law jurisdictions, Ukrainian law also treats moral rights as non-transferable. In practice, contracts often still include waivers or non-assert undertakings, but those should be used with caution, as their enforceability is not bulletproof.
The good news is that the bundle of copyrights typically transferred to software customers includes the right to alter, modify, arrange or adapt the work. Consequently, if the customer receives the rights properly, they should be in a much better position to update, refactor and build on the software without running into the same level of risk of breaching the author’s right of integrity.
Use of AI and Outputs Ownership
AI is another topic that should be addressed head-on in Ukrainian outsourcing contracts. As under many other copyright systems, Ukrainian copyright protects works created through human creative activity. Purely AI-generated outputs do not qualify for ordinary copyright protection. Instead, Ukraine has introduced a separate sui generis regime for non-original works generated by a computer program, including certain AI-generated outputs. That protection lasts for 25 years, calculated from 1 January of the year following creation.
Whether that is commercially acceptable will depend on the customer’s risk appetite. For some customers, the existence of sui generis protection may be sufficient. Others, particularly those focused on maintaining a clean and robust chain of title in their core products, may prefer to prohibit AI use altogether or to permit it only on tightly controlled terms.
In either case, the contract should deal with the issue expressly. It should specify whether AI tools may be used, for what purposes, which tools are permitted, what data may or may not be entered into them, and how any AI-assisted outputs will be treated from an IP perspective. This is especially important under Ukrainian law because, although the legislation recognizes sui generis protection for such outputs, it does not clearly prescribe the conditions for ownership of those rights, meaning that the contractual position becomes critical. Therefore, if AI use is allowed, the safest course is to address that in the contract rather than leaving ownership to implication.
Conflict of Laws: Swiss Governed Contracts with a Pinch of Ukrainian Enforcement
From a conflict-of-laws perspective, parties are generally free to choose Swiss law to govern the outsourcing contract as a contract. However, similarly to the Polish regime, IP questions are usually approached through the law of the country for which protection is claimed. In other words, if IP rights need to be enforced in Ukraine, a Ukrainian court would likely treat Ukrainian law as the key law on the IP side, even if the services agreement itself is governed by Swiss law.
That does not mean a Swiss governing law clause is pointless. Far from it, Ukrainian courts should still respect the parties’ choice of Swiss law for the contractual aspects of the relationship, including the commercial allocation of risk and the wording of the assignment provisions, so long as that choice does not run into mandatory Ukrainian rules. In practice, that means a Swiss-law-governed contract can work perfectly well, but it still needs to be drafted with Ukrainian mandatory rules in mind (especially on points such as the non-transferability of moral rights, the need for written assignments, and the statutory treatment of author remuneration).
4. Conclusion and Practical Recommendations for Swiss Companies Engaging in Cross-Border Software Development
Cross-border software development offers Swiss companies strategic advantages, but it also exposes them to different copyright regimes that cannot be neutralized by a Swiss governing law clause alone. The comparative analysis of Switzerland, Poland and Ukraine shows that IP ownership outcomes are driven not only by what the contract says, but by how local copyright law treats authorship, assignments, formalities and mandatory rules.
From a Swiss perspective, the absence of a work-for-hire doctrine means that copyright never transfers by default outside employment, and that thus outsourcing structures depend on a clean, provable chain of title from individual developers to the contracting entity and onward to the Swiss customer. This set-up becomes more complex in international settings, where local law governs the effectiveness and scope of copyright transfers under the protection-country principle, regardless of the law chosen for the contract.
Poland and Ukraine illustrate two partially similar but also different models. Poland applies a formalized assignment regime, requiring explicit identification of fields of exploitation and separate treatment of derivative rights, with severe consequences if drafting is incomplete (reverting to implied, time-limited licenses). Ukraine, by contrast, is more customer-friendly in substance, with default vesting of economic rights in favor of the customer or employer, but still demands careful drafting, written assignments, remuneration clarity and documentary evidence to ensure enforceability and avoid later disputes.
Across all three jurisdictions, AI-assisted development has emerged as a new topic to expressly consider in contracts. Purely AI-generated outputs generally fall outside classical copyright protection, while AI-assisted works sit in a legally uncertain zone that depends on the level of human creative input. Poland and Switzerland currently treat AI outputs conservatively under copyright law, whereas Ukraine has a sui generis protection regime for non-original, computer-generated works, which may be attractive for some business models but insufficient for others seeking long-term exclusivity.
The following considerations are particularly relevant for Swiss companies seeking to secure copyright ownership rights in cross-border software development projects with partners in Poland, Ukraine:
- Structuring assignments with local law requirements in mind: Copyright assignment mechanisms should be designed not only by reference to Swiss law concepts, but also in compliance with mandatory rules of the jurisdictions for which protection may be sought. In particular, Polish law necessitates the explicit identification of fields of exploitation and a separate contractual treatment of derivative rights, while Ukrainian law requires written agreements and sufficiently precise delineation of the rights transferred, including territorial and use-based scope suitable for global exploitation.
- Ensuring a clean and documentable chain of title: Ownership certainty depends on the existence of a complete and verifiable chain of rights from individual contributors to the contracting entity and ultimately to the Swiss customer. Contractual structures should therefore oblige the outsourcing partner to secure back-to-back assignments and corresponding undertakings from all employees, freelancers and subcontractors involved in the development, rather than relying on assumptions derived from local default vesting rules.
- Addressing moral rights in a functional manner: Given the non-transferable nature of moral rights in Switzerland, Poland and Ukraine, contractual drafting should adopt a realistic approach. While waivers or non-assert undertakings may be included where permissible, these should ideally be complemented by additional safeguards, such as clearly defined modification rights, acceptance mechanisms and documentation practices, to minimize integrity-related disputes.
- Regulating the use of AI tools and AI-assisted outputs expressly: The increasing use of AI in software development warrants explicit contractual treatment. Agreements should specify whether AI tools may be used, identify permitted tools and use cases, and allocate rights in AI-assisted outputs irrespective of whether they qualify for classical copyright protection or sui generis regimes. Complementary provisions addressing data input restrictions, confidentiality, open-source exposure and third-party rights are advisable, ideally aligned with internal AI and privacy governance frameworks.
The key takeaway is that certainty in copyright ownership in international software projects is not achieved by a broadly worded assignment or a generic template. Instead, it requires jurisdiction- and project-aware drafting.
In practice, questions of IP ownership in cross‑border software development increasingly sit well beyond the legal or operational layer and have become a board‑level issue. As software, data and AI‑enabled functionalities move to the core of enterprise value, uncertainty around who owns what, and on what terms, can directly affect scalability, valuation and strategic optionality. This is particularly visible in M&A, carve‑outs and financing scenarios, where gaps or ambiguities in the chain of title can delay transactions, reduce purchase price or shift deal risk. At the same time, the rise of AI‑assisted coding challenges traditional assumptions around authorship and protection, making forward‑looking IP structuring more critical than ever.
Treating copyright and AI governance as part of the company’s broader technology and transaction strategy, rather than a purely contractual afterthought, has therefore become a key success factor for sustainable growth and deal readiness.
