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
