
SOFTWARE AND COPYRIGHTS: REGISTRATION, NOTICE AND WHY

By Charles B. Kramer, Esq.
09/25/91



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 an application with
the Copyright Office.  Getting the application and filing it 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
software programmers 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 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 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 answering these and other questions.


SECOND: COPYRIGHT NOTICE

Whenever you "publish" your program (by, for instance, distribu-
ting copies of it to the public by sale, rental, lease or lend-
ing), 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 "C in a circle" symbol rather than
the word "copyright" spelled out.  If you do, make sure the "C"
really is in a circle, and *not* merely in parens, like this:
(c).  The notice should be placed on the software in a place it
is likely to be seen, preferably on the disks containing the
software and 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 "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 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: 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. If your program was developed jointly with others, you
        might want an agreement between you and your
        co-developers setting forth your respective rights as to
        distributing and further developing the program.

     3. If your program isn't wholly original (if it is, for
        instance, derivative of another's work, or if it incorpo-
        rates public domain code), you might want assistance in
        figuring out how to describe your program on the
        Copyright Office's form.

     4. When your software contains "trade secrets", you might
        want more information about how trade secrets are pro-
        tected.


Charles B. Kramer, Esq.
NY and IL Bars
CompuServe 72600,2026
(212) 254-5093

Copyright 1991 Charles B. Kramer.  Permission is granted to
freely copy this file provided it is copied without alteration or
amendment.
