LavaStaff Nearshore Guide: Who Owns the Code Your Latin American Developer Writes

Most US companies hiring in Latin America discover their IP problem at the worst possible moment: in a data room, three weeks into diligence, when an acquirer's counsel asks for the chain of title on the codebase. The contractor agreement everyone signed is a US template. It says the work is a "work made for hire" and that the contractor "hereby assigns all right, title and interest." It is governed by Delaware law. And the person who wrote 40 percent of the product lives in Medellin, has never set foot in the United States, and is an author under Colombian law with rights that the template was not drafted to move.

This is not a rare edge case and it is not usually fatal. It is a paperwork problem that is cheap to solve before the fact and expensive to solve after it. The trouble is that almost nobody solves it before the fact, because the US doctrine that founders rely on does not exist in most of the region, and nothing in the hiring process forces the question.

This guide covers what actually happens to ownership of code, designs, documentation, and marketing content created by someone in Brazil, Mexico, Colombia, Chile, Argentina, or Peru; where the statutory defaults help you and where they quietly do not; the two traps that catch the most companies; and the specific contract language that closes the gap. It is written for founders and engineering leaders, not lawyers, and it is not legal advice. LavaStaff is a staffing company, not a law firm. Every point below is a question to put to qualified counsel in the worker's country before you sign anything.

The doctrine that does not travel

US copyright law has a concept called work made for hire. When it applies, your company is treated as the author of the work from the moment it is created. There is no transfer, because there was never a moment when anyone else owned it. It applies automatically to works created by employees within the scope of employment, and to a narrow, enumerated list of commissioned works if the parties sign a written agreement saying so.

Latin American copyright systems are built on a different foundation. They are civil law systems in the continental European tradition, where authorship is tied to the human being who created the work and is generally treated as a personal attribute rather than a tradable asset. A company can hold economic rights. A company cannot become the author. That distinction sounds academic until you notice what follows from it: because there is no automatic vesting, everything depends on either a statutory presumption of transfer or an express written assignment, and both of those come with conditions, scope limits, and in two major markets a default expiry date.

The practical consequence is that a US template saying "work made for hire" does almost nothing in the region. It refers to a legal category that does not exist there. What does work is a clear present-tense assignment of economic rights, drafted with the local statute in view. Careful templates already include a fallback clause for exactly this reason, saying that to the extent the work is not a work made for hire, the author assigns the rights. If your agreement does not contain that fallback, the fallback is the only part of the clause that would have done any work.

Two kinds of rights, and only one of them is for sale

Every country in this group splits an author's rights in two.

Economic rights (derechos patrimoniales, direitos patrimoniais) are the commercially meaningful ones: reproduction, distribution, public communication, and the right to make derivative works and modifications. These are transferable. They are what your assignment clause is actually buying.

Moral rights (derechos morales, direitos morais) are the author's personal rights: the right to be recognized as the author, and the right to object to distortions of the work that harm the author's honor or reputation. In this region they are typically inalienable and unwaivable by statute. Mexico's copyright law states it flatly in Article 19 of the Ley Federal del Derecho de Autor: the moral right is joined to the author and is inalienable, imprescriptible, unwaivable, and not subject to attachment. Article 11 of Andean Community Decision 351, which is binding common law across Colombia, Peru, Ecuador, and Bolivia, uses the same four adjectives.

So the clause in your template that assigns "all moral rights, and to the extent they cannot be assigned, waives them" is partly unenforceable in most of the region. This is worth understanding rather than worrying about. In practice, moral rights very rarely disrupt commercial software. They give a developer the right to be named as an author and to object if you mutilate their work in a way that damages their reputation. They do not give them a veto over your product, a claim to revenue, or the right to stop you shipping.

Brazil went further and legislated the problem away for software specifically. Under Article 2, paragraph 1 of Lei 9.609/98, the moral rights provisions do not apply to computer programs at all, except that the author keeps the right to claim authorship and the right to oppose unauthorized alterations that deform or mutilate the program in a way that harms their honor or reputation. The reasoning is practical: software is refactored, patched, and rewritten constantly, and a full moral rights regime would make normal engineering legally awkward.

Country by country: what happens if the contract is silent

The single most useful thing to know is what the statute does when your paperwork says nothing. That is the floor you fall back to, and it varies more than most founders expect.

Brazil: the strongest default for buyers

Brazil has a dedicated software statute, and it is unusually favorable to the party paying for the work. Article 4 of Lei 9.609/98 provides that, unless the contract says otherwise, rights in a computer program belong exclusively to the employer or the party who commissioned the service, where the program was developed during the employment or service relationship, was expressly the object of research and development, or resulted from the nature of the duties performed. Note the phrase "service contractor": Brazil's default reaches independent service providers, not only employees, which is unusual in the region.

Paragraph 2 of the same article draws the boundary. Rights belong to the developer when the program was created with no relation to the contract and without using the contracting party's resources, technological information, trade secrets, materials, facilities, or equipment. This is the Brazilian equivalent of the personal-project carve-out, and it is why "created using company equipment and information" language matters even in a country whose default already favors you.

One caution: this favorable default is specific to software. For a designer's brand assets, a writer's content, or a product marketing video, you are back under the general copyright statute, Lei 9.610/98, where Article 49 requires a written contract for a total and definitive transfer and, in item III, caps the term at five years where there is no written stipulation. If you have a Brazilian contractor producing non-code deliverables on a handshake, five years is your ceiling.

Mexico: favorable on paper, with a clock and a filing cabinet

Mexico has two relevant provisions and they point in slightly different directions depending on how the person is engaged. Article 103 covers software created by employees: unless otherwise agreed, economic rights in a computer program and its documentation created by one or more employees in the exercise of their functions, or following the employer's instructions, belong to the employer. That is a clean result, but it turns on there being an employment relationship, which most US companies hiring in Mexico deliberately do not have.

For a contractor, you are in Article 83: unless otherwise agreed, the person or entity that commissions the production of a work enjoys ownership of the economic rights in it. Also favorable. But Mexico layers two general rules on top that catch people out.

The first is Article 33, which provides that in the absence of express stipulation, every transfer of economic rights is deemed to be for a term of five years. Whether that default term reaches an Article 83 commission is a question Mexican practitioners argue about, and it is not one you want to be arguing in a data room. The way careful drafters handle it is simple: state an express term in the contract, make it the maximum permitted duration of protection, and the question never comes up.

The second is Article 32: acts, agreements, and contracts transferring economic rights must be recorded in the Registro Publico del Derecho de Autor in order to produce effects against third parties. Your assignment can be perfectly valid between you and the developer and still be unenforceable against someone else who claims the same rights. Registration is an administrative step, not a heavy one, and skipping it is a common and quietly consequential omission.

Colombia: a presumption with a scope limit worth reading twice

Colombia amended its copyright statute in 2011. Article 28 of Ley 1450 de 2011 rewrote Article 20 of Ley 23 de 1982 to say that in works created for a natural or legal person in performance of a services contract or an employment contract, the author is the original holder of both economic and moral rights, but it is presumed, absent agreement to the contrary, that the economic rights have been transferred to the commissioning party or employer, to the extent necessary for the exercise of their habitual activities at the time the work was created. The presumption requires that the contract be in writing.

Read the scope limit again, because it is the part that matters. The transfer is presumed only as far as your habitual activities at the time of creation. A company whose habitual activity in 2024 was a scheduling tool, and which in 2026 licenses the same codebase as a component in a different product, is relying on a presumption that was measured against a business it no longer runs. That is a thin place to stand. An express, unlimited assignment in writing removes the question entirely, and Colombian assignments are commonly registered with the Direccion Nacional de Derecho de Autor for the same third-party-effect reasons that apply in Mexico.

Chile: the default covers commissioned work too

Chile's Ley 17.336, Article 8, handles software in two limbs. Where computer programs are produced by employees in the performance of their duties, the employer holds the author's rights unless there is a written agreement to the contrary. Where computer programs are produced on commission from a third party, the rights are deemed transferred to that third party, again unless there is written agreement to the contrary. Like Brazil, Chile extends the buyer-favorable default beyond the employment relationship, which makes it one of the more comfortable jurisdictions in the region for a US company engaging an individual developer directly.

Argentina: the presumption stops at employees

Argentina brought software into its copyright statute in 1998 through Ley 25.036, which added subsection (d) to Article 4 of Ley 11.723. It treats as authors the natural or legal persons whose dependent employees, engaged to develop a computer program, produced it in the performance of their work duties, unless otherwise stipulated.

The operative word is "dependent." The provision is written around a relationship of labor dependency. An independent contractor engaged on a services agreement is not a dependiente, and the presumption is not built to reach them. The consequence is direct: in Argentina, an independent contractor who writes your code keeps the economic rights unless the contract expressly assigns them in writing. Argentina is the jurisdiction in this group where a missing assignment clause does the most damage, and it is also one of the region's largest developer markets, so the exposure tends to be real rather than theoretical.

Peru: two different presumptions, and software gets the better one

Peru's Decreto Legislativo 822 splits the treatment. Article 16 is the general rule for works created under an employment relationship or a commission contract: ownership is governed by what the parties agreed, and absent express contractual stipulation, economic rights are presumed assigned to the employer or commissioning party on a non-exclusive basis and only to the extent necessary for their habitual activities at the time of creation. A non-exclusive presumed license is a considerably weaker thing than ownership, and it is easy to misread the provision as giving you more than it does.

Article 16 expressly excludes computer programs, which are governed by Article 71. There, absent agreement to the contrary, the authors of a computer program are presumed to have assigned to the producer, on an unlimited and exclusive basis and for the full duration of the rights, the economic rights recognized by the law, together with authority to decide on disclosure and to defend the moral rights as needed for exploitation. Authors also cannot object to the producer making or authorizing modifications and successive versions. For software, Peru's default is strong. For everything else your team produces, it is not.

The trap almost nobody checks: the chain has to reach you

Every rule above governs the relationship between the author and the person or company on the other side of that specific contract. If your developer in Buenos Aires has a services agreement with a staffing vendor, and you have a services agreement with the staffing vendor, then whatever rights moved, moved to the vendor. They do not arrive at your company by implication.

This is the single most common defect in nearshore IP chains, and it is invisible until someone maps it. Three questions close it:

• Who signs with the worker? Get a copy of the actual agreement between the individual and whoever engages them, not a summary of it. Confirm it contains a present-tense assignment of economic rights governed by the worker's local law.
• Does that agreement permit onward transfer? An assignment to the vendor is only useful to you if the vendor is contractually able and obliged to pass the rights through to the client.
• Does your agreement with the vendor actually complete the transfer? Look for present-tense assignment language covering all deliverables produced for you, not a warranty that the vendor "has obtained all necessary rights." A warranty is a claim for damages later. An assignment is ownership now.

Ask these before the first sprint. Any competent staffing partner will have the answers in a drawer, and a partner who cannot produce the underlying worker agreement is telling you something useful. If you are still comparing engagement structures, our workforce model guide lays out how staffing, employer-of-record platforms, recruiting, and marketplaces differ on exactly this kind of contractual plumbing, and the EOR versus contractor comparison covers the engagement decision that sits underneath it.

Patents and inventions are a separate regime

Copyright covers the expression: the source code as written, the design files, the documentation. Patentable inventions are governed by industrial property statutes and, in several countries, by labor law rather than by your services agreement. Brazil's industrial property law, Lei 9.279/96, allocates employee inventions across three cases in Articles 88 to 91 depending on whether the invention arose from the nature of the engagement, was made independently of it, or fell somewhere in between, with a shared-ownership rule for the middle case. Mexico handles employee inventions primarily through its Federal Labor Law rather than its industrial property statute: Article 163 of the Ley Federal del Trabajo gives the employer ownership and patent exploitation rights where the worker was engaged in research or process improvement, leaves ownership with the creator in other cases subject to an employer right of first refusal, and preserves the inventor's right to be named along with a claim to supplementary compensation where the invention's value is out of proportion to their salary.

For most software teams this is a secondary concern, because the commercial value sits in the copyright and the trade secrets. If your product involves patentable subject matter, treat invention assignment as a distinct workstream with local counsel and do not assume your copyright clause carried it.

Confidentiality is the protection that actually gets used

In practice, the IP dispute a growing company is most likely to face is not an ownership claim over a repository. It is a departing contractor who leaves with the customer list, the pricing model, the prompt library, or a copy of the codebase. Trade secret and confidentiality protection is what governs that, and it is contractual in most of the region rather than automatic.

Three provisions do most of the work, and all three belong in the same agreement as your assignment clause. A confidentiality obligation that survives termination and defines confidential information broadly enough to include material that is not marked as such. A return-and-deletion obligation that names the actual systems: repositories, cloud drives, password managers, local machines. And an access-offboarding process you run the same day the engagement ends, because a well-drafted clause is not a substitute for revoking a GitHub token.

Non-compete clauses are a different matter and travel poorly. Enforceability against individuals varies by country and is often narrow, sometimes requiring compensation for the restricted period. Treat a non-compete as a deterrent of uncertain value and put your reliance on confidentiality, access control, and the assignment itself. Verification at the front of the relationship helps here too; our background check guide by country covers what can lawfully be verified where, which is a related and frequently misunderstood question.

The clauses to put in the agreement

None of this requires an exotic contract. It requires a handful of provisions that most US templates either omit or phrase in a way that does not survive the border crossing.

• Present-tense assignment, not a promise to assign. "Assigns" transfers at signature. "Agrees to assign" creates an obligation that requires a second document, and second documents are exactly what you cannot get from a contractor who has already left.
• Assign economic rights by name. Reproduction, distribution, public communication, transformation and derivative works, and any other mode of exploitation. Several statutes in the region interpret transfers restrictively and limit them to the modes of use specified, so a generic "all rights" formulation can be read narrowly.
• State an express term and territory. Maximum duration permitted by law, worldwide. This is the clause that defuses Mexico's five-year default under Article 33 and Brazil's five-year cap under Article 49 item III.
• Keep the work-made-for-hire language, but never rely on it. Include it for the US-facing case and follow it immediately with an unconditional assignment fallback that applies to the extent the doctrine does not.
• Address moral rights honestly. Ask for a waiver to the maximum extent permitted, and where waiver is not permitted, an undertaking not to exercise those rights in a way that interferes with normal commercial exploitation. Do not pretend a full waiver is enforceable when it is not.
• Cover pre-existing and third-party material. A license to anything the contractor brings with them, plus a representation about open source usage and license compatibility. Inbound license violations show up in diligence as often as ownership gaps.
• Get the governing law right, or get both. A Delaware choice-of-law clause against an individual in Lima is enforceable in theory and slow in practice. Many companies use their home law for the commercial agreement plus a short local-law assignment deed, executed in the worker's jurisdiction, that a local registry and a local court will recognize without argument.
• Register where registration matters. Mexico's Article 32 and Colombian practice both make recordal the difference between an assignment that binds the parties and one that binds the world.

If you already have hires and no paperwork

This is the common situation, and it is fixable while everyone is still on good terms. That last part is the whole point: remediation is a signature you ask a current, well-treated collaborator for, and it becomes a negotiation the moment the relationship ends.

Start by listing every person outside the United States who has contributed material to a product, a brand asset, or a document you would call proprietary. Include the designer who did the logo in 2023 and the writer who produced the docs site, not only engineers. For each one, find the actual signed agreement and check three things: is there an assignment, is it present tense, and does it specify a term. Sort the result by exposure, which usually means Argentina and any non-software deliverable first, then everything with no signed agreement at all.

Then send a short confirmatory assignment for signature, drafted with local counsel, that assigns and confirms the assignment of all economic rights in work already delivered. Confirmatory deeds are ordinary instruments and reasonable people sign them. Do this as routine hygiene rather than as an emergency, because the version of this conversation that starts with "our acquirer's lawyers flagged something" costs considerably more.

What this means for how you hire

IP chain of title is one of several things that get harder as you scale a distributed team one contractor at a time. Payment rails, tax paperwork, equipment, offboarding, and ownership all follow the same pattern: trivial for the first hire, a real administrative surface at the tenth, and a diligence finding at the fiftieth. Our guide to US tax forms for Latin America contractors covers the paperwork side of the same problem.

The decision worth making deliberately is who carries that administrative weight. Direct contracting is the cheapest per seat and puts every one of these obligations on you. A managed arrangement moves the recurring work to a partner, and the question to ask any partner is precisely the one in the chain-of-title section above: show me the agreement the worker signs, and show me how those rights reach my company.

LavaStaff places vetted Latin American talent with North American teams and handles payroll and compliance for Managed Hire seats, directly or through an EOR partner. We are a staffing company, not a law firm or a tax adviser, and nothing here is legal advice. On IP specifically, the right sequence is straightforward: have your counsel review the contract chain before the first commit, not after the term sheet. If you want to talk through what a properly papered nearshore team looks like for your stage, book an introductory meeting or review the engagement tiers to see which model fits. If you are hiring engineers specifically, our Latin American developer hiring page covers roles, timelines, and how sourcing works.

Primary sources

• Brazil: Lei 9.609/98 (software) and Lei 9.610/98 (copyright)
• Mexico: Ley Federal del Derecho de Autor
• Colombia: Ley 1450 de 2011 amending Ley 23 de 1982
• Chile: Ley 17.336 on Intellectual Property
• Argentina: Ley 11.723 as amended
• Peru: Decreto Legislativo 822
• Andean Community: Decision 351 on copyright and related rights