 |
A
Software Copyright Primer By
Jay Hollander
Jay Hollander, Esq. is the principal of Hollander and Company LLC, www.hollanderco.com, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.
The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances. Summary: Copyright
protection for software can be a valuable tool. But how
do you get that protection, how long does it last, and
do you need a registration? This article addresses those
questions and more.
Contents: This
article contains the following headings:
A few years ago, the Software Publishers
Association spent millions of dollars on an advertising
campaign using the catchy slogan "Don't Copy that Floppy," in
an effort to heighten public awareness of the software
industry's intellectual property rights in its products.
In fact, major software companies spend considerable sums
every year attempting to prevent software piracy, or illegal
copying. One of the main reasons they do this is to help
ensure their rights as copyright owners.
Overview
of Software Copyright Protection
Together
with other intellectual property protections, the framers of the Constitution
provided for copyrights to encourage creative expression by granting owners
exclusive control over the exhibition, performance and distribution of creative
works, as well as control over the creation of related works based on them,
called derivative works, all for a certain period of time.When granted, current
copyright protection generally lasts for the duration of the life of the
author (such as a software programmer) plus 75 years. When the program is
a "work for hire" (discussed below) the protection lasts for the earlier
of 125 years from the date of creation or 95 years from the date of publication.
Software is usually considered "published" when it is offered for sale to
the public on an unrestricted basis, while software that is never licensed
and software licensed in a limited fashion is usually considered unpublished.In
the case of software, copyright protection may apply not only to the literal
computer code itself, but also to other non-literal aspects of the program,
such as its look on the screen, its way of interfacing with the user, etc.On
the other hand, it's important to note that copyright doesn't protect everything.
For example, ideas and concepts cannot be copyrighted, no matter how novel.
Neither can simple facts or so-called "public domain" materials for which
copyright protection is either unavailable or has expired. With particular
reference to software, actual underlying systems, processes, algorithms or
the like that are embodied in a program are not eligible for copyright protection,
even though they may be independently protected as trade secrets or even
qualify for patent protection.
The
Requirements of Copyright Protection
For
software -- or any work -- to be eligible for copyright protection, it must
be (1) original, (2) creative, and (3) fixed in a tangible medium of expression.In
the case of software, the "originality" requirement really only means that
the program must represent the independent effort of the author and not be
copied from someone else's code or program. In some cases, an "original" work
may have some elements that are completely original and some that are not,
in which case, only the original portions will be protected by copyright.Thus,
if a program contains elements that have either entered the "public domain" or
contain industry-standard features, such elements or features will not be
protected, even if contained in an otherwise original work. Examples here
include certain pull-down menus, opening of multiple windows on a screen,
etc.Similarly, the "creativity" hurdle is not hard to overcome. While courts
have denied copyright protection to things like telephone directories and
other lists and simple data compilations that are considered to have no creativity
at all, works that, as a practical matter, show any real creativity will
be accepted, with the self-evident caveat that the more creative a work is,
the more protection it will receive.Finally, even original, creative works
will not be protected by copyright until they are fixed in a tangible medium
of expression. That is, the work must exist outside your mind. Software,
for instance, is fixed when it is on magnetic media like a floppy disk or
a hard drive.
The "Work
for Hire" Doctrine
Particularly
for software developers, there is another tricky part of the law of copyright,
namely, the "work for hire" doctrine. Simply, a "work for hire" is a work
(such as a software program) that is either (1) created by an employee as
part of his or her duties, or (2) specially commissioned as a work for hire
by a contract signed before the work commences. Under this arrangement, the
employer is considered the creator for copyright purposes and is solely entitled
to register the copyright.However, the software industry is one in which
so many programmers and other creative talent are freelancers. So, the tricky
part arises: deciding whether the creator was actually an "employee" for
copyright purposes and, in the case of independent contractors, what types
of works are eligible for "work for hire" treatment, since the latter are
limited by the Copyright Act.An alternative to exclusive reliance on the
work-for-hire doctrine, in the case of independent contractors, is to have
the contractor assign his or her copyright to you in writing before the work
begins.This area of work-for-hire agreements and copyright assignments is
a very complicated area and consultation with your attorney is highly recommended
before making decisions that could seriously jeopardize your software investment.
The
Advantages of Copyright Registration
So,
assuming you have a suitable work and the right to copyright your software,
how do you actually do it?First, the good news. At its core, copyright is
free! Yes, under the U.S. Copyright Act , copyright attaches to an original
creative work automatically once it's fixed in a tangible medium of expression.
You don't have to remember to put the formal copyright notice (the word "copyright" or
the symbol © plus the year of first publication plus the copyright owner's
name) in the document, although it's still a good idea to do so since it
reminds people that the software program is protected. Technically, it's
not even required that the program be registered with the Copyright Office.Of
course, there's a catch. The Copyright Act provides certain additional protections
for those who register, the most important of which concern rights in any
infringement lawsuit that may be brought by you in court.The most significant
of these additional protections is that registration entitles the copyright
owner to "statutory damages" (that is, damage amounts that are provided in
the Copyright statutes) and attorneys' fees in court actions. A copyright
owner who failed to register prior to any infringement taking place is generally
limited to an award of actual damages and profits, which, in many cases,
is hard to prove. Even this limited relief requires registration prior to
beginning the action.Timely registration makes proving your case in court
easier by establishing a public record of the copyright claim, thereby putting
all would-be infringers on constructive notice and making it hard for them
to claim ignorance. Moreover, so long as the work is registered within five
years of its publication, the registration can be introduced in court as "prima
facie" (or good and sufficient) evidence of both the validity of the copyright
and of the facts contained in the registration certificate.
Copyright
Registration Forms and Deposits
Mindful
of the pitfalls that may accompany untimely or improper registration, software
developers usually delegate the responsibility of the registration application
to their attorneys. If, however, you have an interest in going through the
process yourself, the forms for registering can be found at the Copyright
Office's web site.Software is usually filed using a form TX, and a single
application can encompass all the copyrightable elements of the work, provided
that all the elements are either unpublished or published as a single work.
The recently increased registration fee is $30, still a bargain for the protection
afforded.Additionally, you will need to give the Copyright Office a non-returnable
sample copy of the work to be copyrighted, known as a "deposit" of the work.In
the case of software programs, trade secret and other considerations usually
argue against a deposit of, say, the entire source code of a program, since
anyone could theoretically go to the Copyright Office and look at it (although
they cannot remove it or copy it).As a result, the Copyright Office has allowed
the first and last 25 pages of source code to be deposited. Moreover, you
can black-out significant portions of the deposited code as well, to further
protect legitimate trade secrets.In the case of multi-module software, specific
modules sufficient to identify the software program may be deposited with
the Copyright Office in lieu of all of them and, here too, significant strike-outs
of sections of code are allowed.
Conclusion
Entire
books have been written on the in's and out's of software copyright, so I
cannot hope to exhaustively cover all aspects of the topic here. Still, it's
clear that, in a world where property is increasingly made of up of digital
zeroes and ones, copyright remains a strong weapon for the software developer
seeking to maximize and protect the value of its investment and its business.
Proper attention to the requirements of copyright in the beginning can translate
into huge advantages down the road. Copyright © Jay Hollander, 2007. All Rights Reserved.
![]()
![]()
|
