Computer Programs and Copyright

September 2006

Computer programs are a unique form of intellectual property in that they can be protected by both patent and copyright laws. This article addresses copyright protection for computer programs.

There are several aspects of a computer program that may be copyrightable. For example, the "look and feel" of a copyright application may be copyrightable if it is sufficiently original. Similarly, a database schema could be copyrighted, as can computer icons. (Computer icons can also be protected by a design patent.) The most significant form of copyright protection for a computer program, however, is in the source code.

To apply for federal copyright protection for computer source code, you need only submit the first and last 25 pages of source code. Thus, the entire code base need not be disclosed; however, you do need to be prepared to provide a justification as to how you determined which were the first 25 and last 25 pages of code. You may also redact trade secrets and confidential information from the source code that is submitted to the copyright office, but if the redactions are so pervasive that they leave nothing of substance, your application will be rejected. A better approach is to select the first 25 and last 25 pages of source code so that they do not contain any trade secrets or confidential information.

Because a complete copy of the source code is not submitted with the copyright application, it is important to maintain an archive copy of the version of the source code that is covered by the application in case the need arises to enforce the copyright in the future. The best way to do that is by using Microsoft's Visual SourceSafeĀ® or similar archiving program. Another option is to burn the source code onto a cd and deposit it in a safety deposit box. There are also companies like InnovaSafe, Inc. that provide software escrow services.

An issue that often arises in the context of copyright protection for source code is whether to include a copyright notice in the source code itself. The conventional wisdom is to include a copyright notice in all source code files, but that may not be the wisest approach. In many cases, the source code is not provided to the client--either because the client receives executable code or because theapplication is web-based and non-

downloadable, in which case no code is installed on the client's computer. In that case, the source code isn't ever published, and as such, there is no date of first publication. As all copyright attorneys know, the date of first publication is a component of the copyright notice. If there is no date of publication, then in theory, there should be no copyright notice.

In fact, there may be consequences to including a copyright notice (with a date of first publication) when in fact the work has not been published. As discussed in one of our previous articles (see The Importance of Copyright Registrations in Protecting Your Copyrightable Works), if registration is not obtained within three months after the date of first publication, the copyright owner loses the right to recover statutory damages. Although this author is not aware of any case in which a copyright holder was found to have waived its right to statutory damages by virtue of including a copyright notice in source code that had not in fact been published, that argument could certainly be advanced by an attorney representing the copyright infringer, and may in fact be adopted by a court.

Instead, in this author's view, the better approach when dealing with unpublished software is to include a notice along the lines of the following: "This software constitutes an unpublished work and contains valuable trade secrets and proprietary information belonging to Company. None of the source code may be copied, duplicated or disclosed without the express written permission of Company."

The issue of when to use the above notice and when to use a standard copyright notice depends on the interpretation of the term "publication" under U.S. copyright laws. Unfortunately, there is not much guidance in the case law as to what constitutes publication of source code. The definition of "publication" in the current version of the Copyright Act is not much help either. It says that "publication" means to distribute copies of a work to the public by sale or other transfer of ownership or by rental, lease or lending. The terms "rental," "lease" and "lending" do not have much significance to software, but the term "license" does. Although the statutory definition of "publication" does not refer to licensing per se, the licensing of computer software would undoubtedly constitute publication of the source or object code, if the source or object code is made available to the client.


Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.