1. Overall
The rules on rights to the project material can be found in NS 8412 clause 3.5.
This provision is specific to NS 8412 because the products are to be manufactured specifically for the purchaser.
In order for the products to be manufactured, there must necessarily be some form of engineering to ensure that the buyer's purpose and needs are met.
The design is carried out either by the buyer, by the seller or by both parties. NS 8412 contains its own rules on this which are dealt with in paragraph 19 of the standard. We have written an article about this which is located in the folder”Chapter 6 Characteristics of Products and Duties of the Seller'to which paragraph 19 belongs.
NS 8412 paragraph 3.5 and this article are thus concerned with who has the rights to the design carried out to produce the contracted product.
For the record, it is mentioned that the issue of such rights is not relevant for the purchase of generic construction products regulated by NS 8411. These construction products have been manufactured entirely without the participation of the purchaser and who, for that reason, among other things, cannot claim such rights at all.
2. Overview of the rules
These provisions correspond to similar provisions of the Contract Law Standards, illustrating that there are some similarities between manufacturing purchases and construction contracts.
3. Property rights
As mentioned, we deal with the previous engineering in the article on NS 8412 paragraph 19 “Manufacture and production basis”.
By “production basis” and “design” we mean the same thing, and as we will immediately come to, the “project material” is also used as an expression of the same.
Initially, we pointed out that the production base can be prepared by the buyer, by the seller or by both.
In NS 8412 paragraph 3.5.1, first paragraph, it states that the parties should agree among themselves who will have the ownership rights to the project material. This is a “shall” rule, but there are no sanctions if the parties fail to comply with the rule. Our understanding of the rule is that parties are strongly encouraged to agree this early so that no dispute over property rights subsequently arises. Depending on what is produced, the final product may prove to have, or gain, high commercial value for others who want the same product. It is boring for the parties if one then gets into a legal conflict over the ownership of the project material.
If the parties do not conclude such an agreement on the right of ownership, it follows from paragraph 3.5.1, second paragraph, that the right of ownership shall reside with “the person who prepared or procured the project material”.
If the parties first begin to dispute over ownership of a project material, it must be assumed that the parties will dispute about what is inherent in the term “has prepared”. One can imagine, for example, that the buyer comes to the seller with a sketch showing the basic aspects of what is to be produced, and then the seller further develops this sketch into a solution that is feasible. Is it the buyer or seller who “has prepared”, or is it both?
Paragraph 5.3.1, second paragraph lists examples of what is covered by the term “project material”, and it is “sketches, drawings, models, demonstration objects, descriptions, data, data files and calculations”.
In conclusion, it is mentioned that there is practically nothing in the way for the parties to agree that both will have an equal ownership right in the project material, but then one should seek the assistance of specialists with good experience in this area of law so that the agreement drawn up is as good as possible.
4th. Right of use
Regardless of who has the ownership rights to the project material, it is important that the person, or those who do not have ownership rights, be given the opportunity to use the project material insofar as this is substantiated by their association with the product.
The rules of use are set out in NS 8412, paragraph 3.5.2, second and third paragraphs.
In the second paragraph you will find the rules on the seller's right of use, and in the third paragraph on the buyer's right of use.
In both paragraphs, the contract assistants of the seller and the buyer are provided with a right of use so that they can assist the seller or buyer.
If it is the buyer who has the right of ownership, it follows from the second paragraph that the seller shall be able to use it to manufacture the product, remedy defects and exercise management, operation and maintenance to the extent agreed.
If the seller has the right of ownership, the buyer has the right of use to the extent necessary for the completion of the purchase and for subsequent management, operation and maintenance.
As for the right of use beyond this there is a principled difference. The seller cannot use the project material in connection with other assignments, while the right to use it belongs to the new owner of the object in which the product is incorporated.
In the last paragraph, it is specified that the person who has the right of use shall have access to the material on a “appropriate manner so as to achieve the purpose of the right of use”.
5. Software
The provision on software can be found in NS 8412 paragraph 3.5.3.
Today, most (if not all) of project material is produced using computer tools and therefore it must also be assumed that some type of software has been used to produce the project material.
In some cases, the project material will be so complex that it is not possible to read or understand it without the person who has the right to use also the software. In other cases, there will be no need for the software because it is quite possible to use the project material as it is.
NS 8412 paragraph 3.5.3, first paragraph, therefore establishes that the person entitled to use does not have the right to claim the copy of the software with “unless it is necessary to exercise the right of use”.
The second (and final) paragraph states that the purchaser shall have ownership rights to software that has been specially developed for the manufacture of the product. If so, the same will apply to the project material that the program in question has been used to create.
