What Businesses Need to Know About Software Copyright Registration

February 12, 2018
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If Your Business Develops Proprietary Computer Programs, It Is Advisable to Seek Software Copyright Registration 

If your business develops proprietary computer programs, it is wise to seek federal copyright protection. Given the legal remedies that it provides, software copyright registration is relatively easy and inexpensive.

What Businesses Should Know About Software Copyright Registration

Photo courtesy of Seth Schwiet (Unsplash.com)

Registration with the U.S. Copyright Office is required prior to bringing in a lawsuit for copyright infringement. If the work is registered, copyright owners may also seek an award of statutory damages of up to $30,000 per work and up to $150,000 per work in the case of willful infringement.

Notably, copyright protection for a computer program extends to all of the copyrightable expression embodied in the program. However, it does not cover the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design.

Computer Program Copyright Registration Basics

As detailed in the U.S. Copyright Office’s Circular 61, an application for copyright registration contains three essential elements: a completed application form, a nonrefundable filing fee, and a nonreturnable deposit. The term “deposit” refers to a copy or copies of the work being registered and “deposited” with the Copyright Office.

In most cases, each version of a computer program containing new, copyrightable authorship is considered a separate work. Accordingly, a copyright registration for each new software version covers the new material that the author contributed to that version, including any changes, revisions, additions, or other modifications that were made. With some limited exceptions, the registration does not cover earlier versions of the same program or preexisting material that may be contained within the source code. For instance, a registration for a specific version of a program does not cover:

  • Previously published source code;
  • Previously registered source code;
  • Source code in the public domain; or
  • Copyrightable source code owned by a third party.

As with any legal rule, there are exceptions. Most notably, a registration may cover both new and preexisting source code if (1) the preexisting source code has never been published or registered, and (2) the claimant owns the copyright in both the new and the preexisting source code. In such circumstances, applicants must alert the U.S. Copyright Office when submitting the application.

Deposit Requirement for Software Copyright Registration

Businesses seeking to register a computer program must submit the source code for the specific version of the software they want to register. The specific deposit requirements depend on the type of work and whether it contains trade secret material.

With regard to code without trade secret material, applicants must submit one copy of the first 25 pages and last 25 pages of the source code for the specific version you want to register. If the code does contain trade secrets, businesses have several “special relief” options, such as submitting one copy of the first 25 pages and last 25 pages, blocking out the portions of the code containing trade secret material, provided the blocked-out portions are less than fifty percent of the deposit. Another option (among others) is to submit one copy of the first 25 pages and last 25 pages of the object code for the program, together with 10 or more consecutive pages of source code, blocking out none of the source code. It is important to highlight that the Copyright Office strictly applies its rules for submitting source code containing trade secret material, and will refuse to accept a deposit that does not conform to the standards of redaction.

The type of work may also dictate the deposit requirements. For instance, if the computer program is fixed in a CD-ROM, applicants must submit one complete copy of the entire CD-ROM package, including any instructional material for the program. If the same party owns the copyright in the program code and the screen displays, the program and any related screen displays can be registered with the same application. However, if different parties own the copyright in the program code and the screen displays, separate applications are required.

A similar rule applies to video games. Entities can register the audiovisual material for a video game and the computer program that runs it with one application if the same party owns the copyright in the program and the audiovisual material. If the works have been published, they must have been published together as a single unit. If the program and the audiovisual material were published separately, or if different parties own them, each element is considered a separate work, and a separate application must be submitted for each.

In most cases, applicants may upload their source code directly to the Copyright Office’s electronic registration system. Alternatively, the source code may be printed out on paper and mailed.

While businesses are not required in return, an attorney to file a copyright application, it is advisable to work with experienced legal counsel who can walk you through the process and ensure that it is complete and accurate. In addition, a New York City technology attorney can also help you to license and enforce your copyright once it is registered.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, David Einhorn, at 201-806-3364.