Joint rights in software inter partes between a software developer and its customer

Poss Design by Sten Poss vs. Fonden for Tidsskrift for Praktisk Lægegerning, the Maritime and Commercial Court

Fonden for Tidsskrift for Praktisk Lægegerning (The Foundation for Journal for Practical Medicine) co-operated with a third party on the development and update of a software named “MediBox” comprising a collection of the journal and other information.

Poss, who had been a sub-supplier to the third party, acquired the rights of the third party in the software without consideration and continued the cooperation with the Foundation.

In 2002 Poss requested the Foundation to pay royalties in consideration of future updates. The Foundation refused and the parties continued to cooperate on future updates as in the past, i.e. the Foundation requested updates, Poss submitted a quote for supplying the update, and subject to acceptance by the Founda¬tion, Poss supplied the updates.

In 2004 the Foundation terminated the cooperation and Poss claimed payment of royalties from the Foundation in the amount of DKK 672,656.25 (about EUR 90,000).

Leaving it open whether the software was protected by copyright, but considering the cooperation between the parties, the Court found that the rights in the software inter partes was held jointly by the parties in equal shares. The parties may thus jointly have claimed royalties from third parties, but not from each other without separate agreement hereon. Such separate agreement was not found to have been entered into, as the Foundation has refused Poss’ claim for royalty and the co-operation continued as before.