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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:

  • Introduction Overview of Software Copyright Protection The Requirements of Copyright Protection The "Work for Hire" Doctrine The Advantages of Copyright Registration Copyright Registration Forms and Deposits

  • Conclusion


Introduction

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.

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