General information about copyrights

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What is a copyright?

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In the United States, the owner of a copyright enjoys the ability of blocking the unauthorized copying or public performance of a work protected by copyright. Depending on how old a work is, whether or not copyright was renewed, when the work was published (if at all), and whether or not it is a work for hire, the U.S. copyright term for a work may be 28 years, 56 years, the life of the author plus 50 years, 75 years from the publication date, or 100 years from the date of creation. The reader will appreciate that these terms are much longer than the 17-year or 20-year term of a U.S. utility patent.

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How do I copyright my software?

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First, a bit of terminology. The question whether a work is "copyrighted" might, depending on who is talking, mean either of two things. Someone who says a work "is copyrighted" might be trying to say that a copyright registration on the work has been obtained from the U.S. Copyright Office. A different person who says a work "is copyrighted" might mean that the work is protected by the U.S. copyright laws. Lots of people say the former, but it is sloppy usage. The latter is more correct.

In the United States, an original work becomes protected by the copyright laws from the moment it is "fixed in a tangible medium". This provides several obvious examples of ways that a work could fail to be protected by the copyright laws: the work might contain no originality, or it might not be fixed in a tangible medium. Yet another example is if a work has gone into the public domain, perhaps because the term of copyright has expired or because the owner has dedicated the work to the public prior to the expiry of the copyright term.

From this it becomes clear that the answers to the question "what must I do to protect my software through copyright" is, roughly, "fix it in a tangible medium". This is a fairly simple step, one which probably occurred no later than when the author stored the software on a hard disk or floppy disk.

Generally once it is explained that works are automatically copyrighted from the moment the programmer saves the file to disk, the person asking the question restates the question "How may I register the copyright in my software?" We will now address that question.

It is, of course, possible for authors to obtain copyright registrations pro se, i.e., without representation by intellectual property counsel. The U.S. Copyright Office has a circular in PDF format on software copyright protection. There is the danger, however, that an improperly drafted copyright registration application could fail to preserve the trade secret rights in a work of software. For this reason, authors of computer software are encouraged to seek advice of competent counsel.

There is another reason why the software author who is inclined to proceed pro se in applying for copyright protection might be well advised to seek advice of competent counsel. In our experience, it is rare that the only steps needed to attend to a client's intellectual property needs are copyright registration steps. It frequently develops that there are other aspects of the client's business that also require attention. A work may contain material prepared by subcontractors, or material recycled from a previous programming task. The software may call for design patent protection, utility patent protection, or trademark protection. The programmer may have failed to give enough attention to the placement and content of copyright notices. Dozens of other intellectual property issues (discussed elsewhere in this reference) may present themselves. A consultation with competent intellectual property counsel will improve the likelihood that these other aspects are considered.

While there are several reasons to consult intellectual property counsel before filing a copyright registration application on software, it is also in our experience that an author who plans to register numerous similar works will find it fruitful to work with intellectual property counsel on the first one or two registration applications, after which it may be possible for that author to proceed filing subsequent registration applications with minimal assistance of counsel. In other words, it should not be taken as a foregone conclusion that the legal costs for the first copyright registration would have to repeat themselves for subsequent copyright registrations.

A good book on the subject of software copyright protection is Copyright Your Software from Nolo Press, which you can purchase from Amazon Books. Professor Thomas G. Field, Jr. of the Franklin Pierce Law Center has written an excellent brochure called Copyright for Computer Authors.

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When must I file a copyright application?

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Those who are familiar with the rather strict time limits for filing a U.S. patent application may find it to be a pleasant surprise that under the U.S. copyright law, a copyright application can be filed many years after the initial publication of a work, and still be eligible for a copyright registration. This does not, however, mean that you should put off filing your copyright registration. Stated differently, even though there is no particular time limit for filing a copyright registration application, this should not lull the author into a false sense that copyright registration is unnecessary or that it need not be done promptly. The registration of a U.S. copyright offers many benefits to the owner of the copyright. For example, it creates a presumption that ownership of the copyright is as set forth in the registration. In addition, if you happen to have the good luck that you registered the copyright on a date earlier than the date of an act of unauthorized copying, or under certain other circumstances set forth in the copyright law, then if you prevail in court against the unauthorized copier, you may find yourself eligible for statutory damages and for recovery of attorney's fees.

The damages and attorney's fee benefits that come from registering a copyright in advance of infringement are so great, and the cost of registering a copyright is so small, that it is wise to attend to copyright registrations promptly. Many people successfully file copyright registration applications on their own without the assistance of counsel. However, some authors find it convenient to pay someone else to do it for them, simply to avoid the paperwork. Additionally, those whose authorship is in computer software may wish to retaining competent counsel to assist them in filing registration applications, since filing the application incorrectly could conceivably result in loss of trade secret rights, or, in an extreme case, could result in loss of all copyright rights. For example, there are steps which may be taken in filing a copyright registration application in software which preserve trade secrets that are contained in the software. Additionally, since most software is produced in versions, with each version based in part on previous versions, there are certain disclosures which must, under certain circumstances, be made in the registration application to acknowledge the older content.

To give one example, the owner of the dBase programming language came very close to losing all copyright rights in the language due to failure to disclose that portions of the work were based on older works.

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Registering a copyright

Can I register a copyright myself?

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Many types of copyright registrations are easy and straightforward to do, in which case a layperson can obtain a copyright registration for little more than the $30 and a bit of one's time.

In the area of computer software, however, it is often helpful to retain experienced counsel to prepare the copyright application. The reason for this is that for any copyright registration application there is the requirement that the applicant deposit a copy of the work with the Copyright Office; the deposit becomes available to the public. In the particular case of software it is possible to deposit less than all of the work, which helps to protect trade secrets. (The Copyright Office has a helpful circular on this subject, in PDF format.) Experience is helpful in determining what, exactly, needs to be deposited with the Copyright Office. Advice of experienced counsel is also helpful in determining whether the application is complete, e.g., whether it needs to disclose previous works upon which the present work is based. Failure to disclose prior works runs the risk that copyright protection will be lost later. Another trap for the unwary is characterizing a work incorrectly as a work-for-hire when it is not; this, too, runs the risk of later loss of copyright rights.

What does it cost to register a copyright?

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At the time of writing, the filing fee for registering a copyright with the U.S. Copyright Office is $45 (U.S. Copyright Office brochure on Fees). The Copyright Office will do a registration on an expedited basis as well, for example if litigation is imminent. An extra fee must be paid and the application has to be submitted to a different address for expedited registration.

The factors described above explain why the lawyer's fees in a software copyright registration application are likely to be at least $200-$300, exclusive of copying and courier charges.

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What steps are involved in hiring an intellectual property lawyer to register a copyright?

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Here are some of the steps that are generally followed at Oppedahl Patent Law Firm LLC when a new client asks us to register a copyright.

First, we spend a little time on the subject of what, exactly, is needed. Is it really a copyright registration that is needed, or (as sometimes turns out to be the case) a trademark registration or patent application? At the same time, we do a conflict check to see if accepting the new client would present a conflict with respect to any existing clients.

Assuming that it is indeed a copyright registration that is needed, we then find out what it is that needs to be registered -- software, a videotape, a sculpture -- and then we determine what needs to be deposited. This might require a photocopy, a photograph, or some other type of copy, depending on the type of work.

It is also a good idea if we review the types of information the Copyright Office is going to want to know. How, for example, did the applicant come to own the work? In the case of software, is there a written agreement between the programmer and the applicant? Was the work published? If so, when? We would send the client a fax of the form so the client may consider what the answers are to the various questions on the form.

Still another step is counseling the client regarding the correct form of copyright notice to be placed on the work.

We also ask new clients to send us money in advance, which we hold in escrow and apply toward the cost of the professional services.

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What constitutes a satisfactory copyright notice?

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There are two popular misconceptions which it is important to dispel: One misconception is that under the Berne Convention it does not matter whether a copyright notice is correct or not. It is also important to dispel the misconception that it does not matter, under the Berne Convention, whether a copyright notice has been placed on a work.

This misconception has its origin in the fact that, prior to the 1978 Copyright Act, publication of a work without a proper copyright notice often resulted in a complete loss of copyright rights. The 1978 Copyright Act provided for the salvaging of copyright rights if certain efforts were taken to cure the failure to mark with copyright notices. After the 1978 Act, the United States adhered to the Berne Convention. Under the Berne Convention, the absence of a copyright notice does not necessarily lead to the automatic loss of all copyright rights.

It does not, however, follow from this that an author can place an incorrect copyright notice without any risk of harm flowing from the notice being incorrect. As will be discussed below, certain defects on a copyright notice might still jeopardize the copyright rights of an author.

Having said all this, let us return to the original question, which is what constitutes a proper copyright notice. A proper copyright notice is (1) the C in a circle symbol (©) or the word "copyright" or the abbreviation "Copr.", (2) the copyright date, and (3) the name of the copyright owner. Each of these three elements will be discussed in turn.

The symbol. As is well known to computer programmers, the ASCII character set does not include the © symbol. (It is noted that the extended character set used in the World Wide Web does provide a © in many browsers.) It is not uncommon for programmers to attempt to approximate this symbol by means of a "(C)". Until such time as the courts have interpreted the copyright law in the way that it approves of this approximation, we cannot advise the use of "(C)" as a proper copyright symbol. Thus, where the character set is limited to ASCII, it is suggested that in a copyright notice the word "Copyright" be spelled out in full, or that the abbreviation "Copr." be used instead.

The date. The copyright date is perhaps the most important trap for the unwary. One of the purposes of the copyright date, under U.S. copyright law, is to assist members of the public in identifying works which are so old that the copyrights have expired. To do this, a member of the public would take the copyright date appearing in the notice, add to it the number of years of the copyright term, and thereby arrive at a conclusion as to when the copyright would have expired. In the case of computer software, it is common place for the work to include original matter from many different dates including original work dating from any of several different years. Consider what would happen if the most recent year were the only year used in the notice. A member of the public would then be led to the conclusion that the entirety of the work is protected by copyright starting from that year and ending at the end of copyright term. But if part of the work dates from a previous year, then its term expires one year earlier than the rest of the work. This could mislead members of the public in the sense that they would incorrectly think that none of the work could be copied until the end of the term that is based on the date in the notice, when in fact part of the work would have entered the public domain one year earlier than the end of that term. There have been court cases where judges have stricken all of the copyright rights in a work due to such incorrect statements in the copyright notice.

Because of this, it is wise to ensure that nothing in the copyright notice would mislead the public regarding the end of the copyright term. If only one year is to appear in a notice, it should be the oldest year, associated with the oldest of the matter in the work. In other words, if one must err it should be in the direction of omitting newer years, not older years.

Another approach is to put a range of years. For example, if the oldest matter in the work dates from 1991 and if the newest matter dates from 1994, the notice might say copyright 1991 to 1994 and the name of the owner.

This problem of listing multiple years in a copyright notice is not unique to computer software. Any work that is regularly updated, such as a dictionary or almanac or encyclopedia, will contain items dating from many different years. If you look at such a work you may expect to see at least one copyright notice, and many different years in the notice or notices.

The copyright owner. The third element required in the notice is the name of the copyright owner. The intention is that the members of the general public would, by contacting the entity in the notice, be capable of reaching the actual owner of the rights. Thus, the copyright law is not so strict as to require that the precise legal owner be listed in the notice. If you have some question as to the name that should appear in your copyright notice, we suggest you seek advice of counsel.

Even though copyright notices are not required under the Berne convention, there are numerous benefits that flow from being consistent and thorough in application of copyright notices. Some of these benefits are legal, in that certain rights may be stronger with the notice in place, while other benefits are more practical--if notices are prominently displayed, this may dissuade would-be wrongdoers from making unauthorized copies of the work.

For these reasons, we generally recommend that a detailed review be made of the manner in which a particular client's software is used. We often suggest a copyright notice on the medium by which the software is distributed (e.g., a floppy disk or CD-ROM), a notice that appears when the software is executed, and at least one notice that appears within the executable code in a way that would become visible if someone were to attempt to disassemble or reverse-compile the software.

As a separate issue, it is noted that many software works are distributed with user manuals or other documentation, and we often suggest that such materials should also bear appropriate copyright notices.

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Is there a conflict between trade secrets and copyrights?

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Most computer software contains trade secrets. The programmer prepares the software in source code, but the software distributed to customers is generally mere executable code. The internal format and structure of the executable code is relatively uninterpretable by humans, which to some extent protects trade secrets contained in the source code.

Prior to the 1978 Copyright Act, the filing of a federal copyright registration application carried with it the sense that the work to be registered must have been "published". Under that Copyright Act works were divided into unpublished and published works, and only the latter were protectable by federal copyright law. Thus, the mere act of asserting federal copyright protection arguably represented an admission that the work had been published. What's more, the applicant was required to deposit a copy of the protected work with the Copyright Office. These two factors prompted some anxiety among programmers that seeking copyright protection might count as a tacit admission that there were no trade secrets in the software. The impression was that a programmer could not have it both ways -- that a work protected by copyright did not, by definition, contain trade secrets.

Regardless of the possible ambiguity that existed prior to 1978 for those who wanted to have both trade secret and copyright protection in software, programmers will be relieved to know that the potential ambiguity is no longer present. Under the 1978 Act and under the associated copyright rules that have been promulgated by the Copyright Office, it is possible for the author of computer software simultaneously to assert trade secrets in the source code, and to assert copyright rights in the source code (and in executable code).

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What is a mask work?

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A mask work is a creative work protected under the Semiconductor Chip Protection Act. Although nowadays few chip makers worry about it, there was a time several years ago when semiconductor chip makers were concerned that a competitor would knock off a semiconductor chip by purchasing one of the chips, removing the semiconductor layers one by one, photographing the layers, and using the photographs to generate replicas of the chip. The Semiconductor Chip Protection Act was intended to allow chip makers to register the masks, which would then provide certain remedies against copiers. The protection is thus a copyright-like protection.

It turns out that there have been virtually no lawsuits brought under the Semiconductor Chip Protection Act, and a very few mask work registrations have been filed. We believe this is because people who are attempted to knock off someone else's integrated circuit nowadays typically have easier ways to do it than by photographing layers and making photographs of the layers. Thus, the Semiconductor Chip Protection Act protects against a type of infringement that is no longer a day-to-day economic threat.

The U.S. Copyright Office has a circular about mask work protection.

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How may I do copyright searching on the Internet?

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The U.S. Copyright Office has circulars How to Investigate the Copyright Status of a Work and The Copyright Office Card Catalog and Online Files.

It is possible to search federally registered copyrights for free on the Internet. The Library of Congress maintains a database of registered copyrights.

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How may I learn if the copyright on a work has expired?

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It is, frankly, not easy as a general matter to determine if the copyright on a work has expired. If the work is old enough, you may be able to take the year in the copyright notice, note that it is long enough ago, and conclude that the copyright has expired. Under the Berne Convention, however, it is not even necessary to place a copyright notice on a work to secure copyright protection, thus there is not necessarily a date anywhere on the work. You are then reduced to having to find some other way to date the work. Helpful starting points include:

See also the U.S. Copyright Office's circular How to Investigate the Copyright Status of a Work.

See also the page here entitled How may I do copyright searching on the Internet?

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What is the Berne Convention?

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The Berne Convention (text) is a treaty regarding copyright which has been adhered to by most of the countries of the world. From the point of view of the United States, one of the most important effects of the U.S. adhering to Berne is that it is no longer fatal to copyright protection for the owner to fail to place a copyright notice on the work.

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How is it determined who owns software? What is the work-for-hire doctrine?

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Under U.S. law, it may be generally stated that the copyright in software (like that in any other work) is owned by the programmer (author) in the absence of a writing transferring ownership, and in the absence of a work-for-hire relationship. This presents a trap for the unwary company that, for example, hires a programmer consultant who is not a full-time employee of the company. Even if the company paid for the work, the company is not, generally, the owner of the copyright in the software, absent some written agreement on the subject. (Note: if this subject matters to you, seek advice of competent counsel!)

For those who wish to learn more about the work-for-hire doctrine in connection with computer software, it may be helpful to study the case of MacLean v. Mercer, which is one of the leading appellate court cases on the subject.

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What is the governing law for copyrights?

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In the United States, the law that governs copyrights is Title 17 of the United States Code, commonly cited as "17 USC". It incorporates the Berne Convention. Also pertinent is the Copyright portion of the Code of Federal Regulations.

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