The Confidentiality of Your Federal Copyright Submission

October 2009

The confidentiality of a federal copyright application and deposit is an issue that is of concern to many of our clients. Often times the confidentiality issue is the determinative factor in terms of whether to pursue a federal copyright registration. In our August 2005 issue of Intellections (click here), we addressed the benefits of a federal copyright registration. These benefits must be weighed against the risk of public disclosure, however. For works like jewelry, posters, books and other types of items that are sold publicly, confidentiality is not an issue. But for works like internal training and procedures manuals, functional specifications, and software, confidentiality is a primary concern.

Generally speaking, the copyright office is not obligated to maintain the confidentiality of your application or deposit. (The deposit is usually a photocopy or sample of the work to be registered.) In fact, Section 704 of the Copyright Act states that all materials deposited with the Copyright Office are the property of the United States Government. Section 705 requires the Registrar of Copyrights to keep records of all deposits and registrations and to make those records open to public inspection. If you ask the Copyright Office for a report of the information they have disclosed with respect to your registration or deposit, they will provide it to you for a fee (see Section 705(c)), but you cannot prevent the disclosure from occurring.

Copies of registration certificates are fairly easy to obtain. Registrations can be searched on the Copyright Office website www.copyright.govby author name, title of the work, or registration number. When a record is pulled up, certain data concerning the registration will be displayed, but the deposit itself is not made available online. Copies of actual registration certificates can be ordered by phone (202-707-3000) or by submitting a request to the Copyright Office in writing.

To view an actual deposit, it is necessary to visit the U.S. Copyright Office in Washington, D.C. Two to three weeks prior to your visit, a written request to inspect the deposit must be submitted to the Copyright Office, together with the retrieval fee of $150. Deposits are housed at the Library of Congress, and you will be notified when the deposit has been retrieved from the Library of Congress and sent to the Copyright Office. At that time, the deposit will be available for your inspection. All inspections are conducted under the watchful eyes of Copyright Office personnel, and no copies can be made. According to unofficial sources, the Copyright Office will not allow verbatim notes to be taken of source code, for example.

The Copyright Office does not publish deposits, and copies will not be made without express, written permission from the author, his agent or heirs, or unless the copy is requested for purposes of litigation (with appropriate written documentation concerning the litigation purpose). If a copyright application is rejected, unpublished works are discarded or returned to the author (in the Copyright OfficeÕs discretion), and published works are given to the Library of Congress or donated to charity. Thus, you cannot count on receiving your deposit back if your application is ultimately refused.

In our last newsletter (click here), we explained that with copyright applications for software, the applicant need only submit the first 25 and last 25 pages of source code and that certain portions of the source code may be redacted to preserve confidential information or trade secrets. These rules go part way toward alleviating the confidentiality concerns relating to copyright applications for software.

But if you are considering filing a patent application for your software invention, the non-confidential nature of a federal copyright filing should be taken into consideration as it relates to the public disclosure aspects of patent law. (Click here for our article on the public disclosure rules pertaining to patentable inventions.) If there is any concern at all about avoiding a public disclosure under patent law, the more prudent course would be to defer the copyright filing until after the patent application is on file. Technically, even a pending copyright application prior to issuance of the registration is a public record.


Amicable photo of Toni

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