Copyright For Computer Programs
A single registration may be made for a computer program and its screen displays. However, if pictorial or graphic authorship predominates, registration as a “Visual arts work” (Form VA, https://www.copyright.gov/forms/formva.pdf) may be made.
Similarly, if motion picture
authorship or audiovisual material
predominate, registration as a “Motion picture/audiovisual work” (Form PA,
https://www.copyright.gov/forms/formpa.pdf) may be made.
For published or unpublished computer programs, the deposit should be one copy of the first 25 pages and last 25 pages of source
code reproduced in a form visually
perceptible, together with the page or equivalent unit containing the copyright notice, if any. The source code may be uploaded electronically, preferably in PDF format. In the case where the computer program contains trade secret material,
include a cover letter stating that the claim contains trade secrets. The source code deposited will have portions containing trade secrets blocked out. See again Circular 61 for
Circular 61 of the U.S. Copyright Office
(https://www.copyright.gov/circs/circ61. pdf) defines a “computer program” as a set of statements or instructions to be used directly or indirectly in a computer in order to
bring about a certain result. This is a broad definition that includes what is commonly called “software”, “firmware”, “apps”, and the like. In many cases the computer program is more valuable commercially than the hardware on which it is installed. This pamphlet addresses one form of protection of computer
programs, that of copyright protection. At the outset, it is acknowledged that other forms of
protection, including patents and trade secrets, are also available, but copyright is perhaps the best and most reliable form of protection.
Before seeking copyright protection for a computer program, it is important to determine who has title in the copyright. Generally
speaking, the author or authors of the computer program are the owners of the copyright. As a
practical matter, however, the author or authors may be under a legal obligation to assign their
rights to a third party, such as an employer. The author or authors may be employees or consultants and in either case the best practice
is to have a formal written agreement defining rights and obligations of the parties. For
example, technical personnel would typically be required under an employment agreement to assign rights to invention (patents) and writings (copyrights) to their employer. On the other hand, consultants may be used for developing software for a specific project and would not be ordinarily considered an employee of the company.
While consultants may submit a written form agreement specifying the work to be performed, it is important that the company make sure that the contract under which the work is performed includes an
agreement to assign the copyright in the software to the company. The Copyright Act defines a “work made for hire” in two parts
(https://www.copyright.gov.circs/circ9.pdf), but suffice it to say that the U.S. Supreme Court has interpreted the definition very narrowly and
it is unlikely that software generated by a consultant would be considered a “work made for hire”, making a written agreement to assign the copyright in software generated by a consultant mandatory.
Registration does not create the copyright. Under the Copyright Act of 1976 (Title 17, United States Code), a copyright exists as soon
as it is created. If the copyright already exists, why bother to register it? Registration is a
prerequisite to bringing suit in the Federal District Court for enforcement of a copyright.
This remains the case despite the United States becoming a signatory to the Berne Convention (The “Berne Convention Implementaion Act” became effective March 1, 1989) which provides that there can be no prerequisite of registration before bringing suite to enforce a
copyright. Registration and deposit
requirements are a chief source of books and other works for the Librarian of Congress. The
compromise reached was that no suit for copyright infringement can be brought unless the copyright is registered, unless the work is a
Berne Convention work whose country of origin is not the United States. How’s that for substantial compliance?
Moreover, “timely” registration can
provide a basis for statutory damages and recovery of attorneys fees. “Timely” registration is before the infringement is commenced or, in the case of a published work, within three months of publication.
Failure to make “timely” registration precludes the remedies of statutory damages and recovery of attorneys fees; however, registration can still be made after infringement has commenced to meet the statutory requirement for bringing
suite in the Federal District Court. In such an event, actual damages must be proven, and this is a significant and expensive burden of proof.
In any event, you should register your copyright within five years of first publication since registration within five years is considered prima facie evidence of the validity of the registration.
Registration is a simple process requiring only that you file an application with the required
deposit and payment of the fee. While this can be done with paper forms, doing so is more expensive than filing electronically. You should go to the Copyright Office’s Registration Portal
(https://www.copyright.gov/registration/) which will walk you through the process. See also Circular 61 which provides details for completing the online application for a computer program. The registration form for
Class TX non-dramatic literary works, is used for computer programs as well as technical manuals.