SOFTWARE AND COPYRIGHTS: REGISTRATION, NOTICE AND WHY rev. 01.08.92 By Charles B. Kramer Attorney NY and IL Bars You own a copyright in software you create the moment you "embody it in a tangible medium", at least unless you create it under a contract that provides otherwise, or as an employee. What this means is, you own a copyright in the software you create the moment you preserve it by writing it down, dictating it to a tape recorder, or saving it to a disk. Since you own the copyright, you have, without further formality, all of the exclusive rights of a copyright holder. These, to quote the Copyright Act, include the exclusive rights to "reproduce the copyrighted work in copies" and to "prepare derivative works". To *register* your copyright, you must file a two page application with the Copyright Office. Getting the application and filling it out is not difficult, and is a good idea. Here's how to get the application, how to learn to fill it out, and some related things people who create software should know. FIRST: GET THE APPLICATION The best way to get the application and learn how to fill it out is to write to the Copyright Office at this address: Publications Section Copyright Office Library of Congress Washington, D.C. 20559 and ask for Application Form TX and Circular 61 ("Copyright Registration for Computer Programs"). The application and Circular are free. The Application must be accompanied by $20 and "deposit material", which is typically a print out of the source code of your program. Giving your source code to the Copyright Office makes it public, which is something you don't want to do if (as is usually the case) the code contains any of your "trade secrets". A trade secret, generally speaking, is confidential information that relates to your business. The confidential information need not be clever, but it must not be generally publicly known. You lose your trade secrets, among other circumstances, when you publicly divulge them, and when someone independently discovers them and makes them public. To enable you to register your copyright without surrendering your trade secrets, the Copyright Office permits deposit material to be less than all of the source code, and permits the secret portions of the source code to be "blocked out", so long as the deposit material is any of the following: 1. 1st and last 25 pages of source code, with portions containing trade secrets blocked out; or 2. 1st and last 25 pages of object code, plus any 10 consecutive pages of source code with no blocked out portions; or 3. 1st and last ten pages of source code, with no block outs. If you are unclear as to what pages reflect the "first" and "last" of any particular program, use any reasonable system for identifying them in a consistent way. If the entire program is consists of less than 50 pages of source code, the deposit material should be all source code with trade secret matter blocked out. Whichever option you choose, more than half of the code on materials you send for deposit must *not* be blocked out. Is registering your copyright in software you create this simple? Almost! "Form TX", for instance, may not be the best one to use if your program principally generates original graphical images. And slightly different rules apply when your program doesn't contain trade secrets, and when you wish to register a revised version of a program you've already registered. You will find Circular 61 useful in providing information with respect to these and other situations. SECOND: COPYRIGHT NOTICE Whenever you "publish" your program (by, for instance, distributing copies of it to the public by sale, rental, lease or lending), you should place a "notice of copyright" on each copy. The form of the notice is: Copyright [year first published] [name of copyright owner] If you prefer, you can use the abbreviation "copr.", or can use the "C in a circle" symbol rather than the word "copyright" spelled out. If you use the "C in a circle" symbol, however, make sure the "C" really is in a circle, and *not* merely in parens, like this: (c). Copyright notice must be placed "in such manner and location as to give reasonable notice of the claim of copyright". In the case of software, this means placing the notice where it is likely to be seen, preferably on the disks containing the software and near the program title on the screen displayed when the program is started. Keep in mind that copyright *notice* and copyright *registration* are separate matters. As a result: 1. You should use copyright notice when you publish your program whether or not you register your copyright in it. 2. You should register your copyright whether or not you publish the program. 3. The year in the copyright notice is the first year of publication, and is unrelated to the year you registered the copyright. THIRD: WHY USE NOTICE, AND WHY REGISTER? If you created your program on or after March 1, 1989, you don't lose your copyright in it even if you publish it without putting copyright notice on it. And, as mentioned, you own a copyright in software you write even if you don't register the copyright. So why use copyright notice? And why bother to register the copyright? The benefits of using notice include: (1) if the work is in- fringed, the infringer cannot claim its infringement was "innocent", and cannot get damages assessed against it reduced on that basis; (2) notice informs the public of who copyright owner is (which might be handy if you're the copyright owner, and someone wants to get a license from you). The benefits of registering the copyright include: (1) if you have to prove infringement, registration makes it easier to prove that your work was created first; (2) for works created in the U.S. (and certain other works) you have to register before you can file an infringement action; (3) registration may enable you to get statutory damages and attorneys fees if you should win an infringement action. FOURTH: IF YOU MARKET YOUR PROGRAM AS SHAREWARE The Copyright Office permits the recordation of documents "pertaining to copyrights", which include, among other documents, copyright assignments, employment or independent contractor agreements (if they specify who will own the copyright in software the employee or contractor writes), and wills (if they specify who will own a copyright upon someone's death). Circular 12 from the Copyright Office explains the procedure and some of the benefits derived from recording such agreements. In October 1991, the Copyright Office created a separate procedure for recording documents pertaining to shareware. "Shareware", in the words of the Office, is "copyrighted software which is distributed for the purpose of testing and review... subject to the condition that payment to the copyright owner is required after a person who has secured a copy decides to use the software." The documents that can be recorded under this procedure are those, like the "license.doc" files that often accompany shareware, which govern "the legal relationship between owners of computer shareware and persons associated with the dissemination or other use of computer shareware". Recording shareware related documents is not a substitute for registering the copyright in the shareware program itself, which should be done using the same procedures by which the copyright in other computer programs are registered. FIFTH: WHEN DO YOU NEED ASSISTANCE? The above are general rules, and the information any particular programmer may need in a particular instance could be different. Here's examples of the circumstances in which an attorney's advice can be helpful: 1. An attorney can help you decide if your program has any patentable elements. You might first consider, however, the League for Programming Freedom's convincing argument that software patents may be disastrous to the future of software development. The League can be contacted through CompuServe at: Internet:league@prep.ai.mit.edu 2. Who owns the copyright to software can become uncertain when the software was created either by two or more people, or was created in whole or in part in the context of an employment or independent contractor relationship. The uncertainty can usually be eliminated by use of an agreement, which in appropriate cases, could take the form of an employment, independent contractor, joint-venture, copyright pool, or other form of agreement. The agreement should be recorded with the Copyright Office as a document pertaining to copyright. 3. When a program is developed cooperatively by people, an agreement between the co-developers is sometimes used that sets forth their respective rights as to distributing and further developing the program, and as to sharing money made from it. 4. If your program isn't wholly original (if it is, instance, derivative of another's work, or if it incorporates public domain code), you might want assistance in figuring out how to describe your program on the Copyright Office's form. 5. When your software contains "trade secrets" that can be seen by people other than yourself, you might want more information about how trade secrets are protected. 6. If you market your program under a trademark, you might want to federally register the mark. CHARLES B. KRAMER Attorney NY and IL Bars CompuServe 72600,2026 Internet 72600.2026@compuserve.com (212) 254-5093 rev. 01.08.92