Programmer 7500/MAX_PROGRAMMERS.iso/CLIPPER/MISC/COPYRITE.ZIP/COPYSO.TXT

Text File | 1993-04-13 | 11.7 KB | 266 lines

SOFTWARE AND COPYRIGHTS: REGISTRATION, NOTICE AND WHY
Rev. 06.27.92
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 write it down, dictate it to a tape
recorder, or save it to a disk.  This may be surprising
information partially because people (including, unfortunately,
the Copyright Office) often speak of a work as being
"copyright_ed_" as though writers have to do something for what
they write to be copyright protected.

    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", "prepare
derivative works" and "distribute copies".

    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).

    The "year first published" is the year you first distribute
the program publicly.  If you upgrade the program or otherwise
change it in more than a trivial way, the only year the notice
should contain is the year you first publicly distributed the
upgrade.

    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.

    Sometimes copyright notice is accompanied by the phrase "all
rights reserved".  The phrase is principally meant to reserve
rights in countries that are parties to the Pan-American
Convention of 1911.  Although still very widely used, it is a bit
of an anachronism, since it probably isn't needed to reserve
rights under that treaty, and the significance of that treaty has
paled since the U.S. entered the UCC (in 1954) and Berne
Convention (in 1989) treaties.  The phrase doesn't hurt, however,
and in the case of software might help if you ever want to argue
that you meant it to indicate that you reserve your
*non*copyright rights in your software, such as your "secrets"
contained in its underlying source code.

    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 "inno-
cent", 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

    "Shareware", in the words of the Copyright 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 Copyright Office permits the recordation of signed
documents "pertaining to copyrights", which include copyright
assignments, employment and 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 documents.  The procedure generally does
_not_ apply to shareware documents pertaining to copyrights since
those documents are generally not signed.

    In October 1991, the Copyright Office created a separate
procedure for recording documents pertaining to shareware.  In
the words of the Copyright Office,

   "Recordation in this Registry will establish a public record
   of licenses or other legal documents governing the
   relationship between copyright owners of computer shareware
   and persons associated with the dissemination or other use of
   computer shareware.... The legal effect of recording a
   document in the Computer Shareware Registry is at the
   discretion of the courts."

    The documents that can be recorded under this procedure are
those, like the "vendor.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:[e-mail]

    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 several
       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. When your software contains "trade secrets" that could be
       seen by people other than yourself, you might want more
       information about how trade secrets are protected.

    5. If you market your program under a trademark, you might
       want to federally register the mark.  Copyrights and
       trademarks are best thought of as wholly separate rights,
       and registering one does not register or preserve your
       rights as to the other.


CHARLES B. KRAMER
Attorney
NY and IL Bars
CompuServe 72600,2026
Internet [e-mail]
[phone]

Rev. 06.27.92
COPYRIGHT 1992 CHARLES B. KRAMER
ALL RIGHTS RESERVED, EXCEPT THAT
PERMISSION IS GRANTED TO FREELY
COPY AND DISTRIBUTE THIS DOCUMENT
WITHOUT ALTERATION OR AMENDMENT.