When entrepreneurs and technology startups start development of their software in connection with tee an upcoming mobile application or other technology venture, copyright registration of software becomes an important issue in the overall intellectual property protection strategy of the venture.
Under the 1976 Copyright Act, software is protected as a computer program, defined as a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result. Copyright protection for a computer program extends to all of the copyrightable expression embodied in the program. The copyright law does not protect the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design.
Eligibility for Copyright Registration of Software
A computer program may be registered with the U.S. Copyright Office if it contains a sufficient amount of original authorship in the form of statements or instructions to a computer. The expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.
As a general rule, the Office does not distinguish between executable code and non-executing comments or data that may appear in the source code for a computer program. Either element may support a claim to copyright if the program contains a sufficient amount of original statements or instructions, and both elements may be registered with the same application.
A computer program that generates bar codes may be registered if the program contains a sufficient amount of original authorship in the form of statements or instructions to a computer. However, the registration would not cover any bar codes or mere variations of ornamentation generated by the program.
Information Needed for Copyright Application of Software
In preparation of a copyright registration, in an application for software, the following information will be needed for input into the federal copyright application.
i. Title of the Program – The title should include the version number or release number (if any) for the specific version of the program that the applicant intends to register.
ii. Name of Author / Name of Claimant – Specifically, the applicant should provide the name(s) of the person(s) or organization(s) who created the source code for the version that will be submitted for registration.
iii. Year of Completion – As a general rule, the applicant should provide a year of completion only for the specific version of the program that will be submitted for registration. The applicant should not provide a year of completion for the first version of the program or any other version of the program that is not included in the application.
iv. Date of Publication – A computer program is considered published when copies of the program are distributed “to the public by sale or other transfer of ownership, or by rental, lease, or lending” or when copies of the program are offered “to a group of persons for purposes of further distribution, public performance, or public display.”
As a general rule, a program is considered published if there has been a general distribution of the program code, regardless of whether the copies are distributed by purchase or license and regardless of whether the copies are distributed on a CD-ROM, DVD, or downloaded online. Likewise, a program is considered published even if the copies contained object code rather than source code and even if the source code has not been disclosed to the public.
v. Specific Claim to Copyright Registration in a Computer Program – The applicant should identify the copyrightable authorship that the applicant intends to register and should assert a claim to copyright in that authorship. The information provided in the application defines the claim that is being registered, rather than the information given in the deposit copy(ies) or elsewhere in the registration materials.
“Computer program” is the most appropriate term for registering a claim in this type of work. “Revised computer program” is the most appropriate term for registering a claim in a derivative computer program.
vi. Limits on the Claim to Copyright Registration in a Computer Program – If the computer program contains an appreciable amount of unclaimable material, the applicant should exclude that material from the claim. The applicant should provide a brief statement that identifies the unclaimable material that appears in the program. In addition, the applicant should provide a brief statement that identifies the new material that the applicant intends to register.
Deposit Requirements for Copyright Registration of Software
To register a computer program, the applicant must submit a portion of the source code for that program. Specifically, the applicant should submit an identifying portion of the source code for the particular version of the program that the applicant intends to register, regardless of whether the program is published or unpublished, and regardless of whether the program is fixed in a CD- ROM, semiconductor chip, a magnetic tape or disk, or any other storage media.
The Copyright Office considers source code to be the best representation of the copyrightable authorship in a computer program. The Office generally discourages applicants from submitting object code, because it cannot be examined for copyrightable authorship. The applicant may be required to submit the entire source code for the computer program, or the applicant may submit representative portions of the source code. The amount of source code that is required varies depending on the length of the code, whether the work is a derivative computer program, and whether the code contains trade secret material.
Consultation with an experienced copyright attorney can help entrepreneurs and technology startups navigate the complexities of process for copyright registration of software, and decide what to file and how to file it in the Copyright Office for maximum copyright registation protection.
