The ubiquitous © can always be seen on the user-facing side of software and on the web, but what about under the hood? Is copyrighting your source code a useful endeavor? Put another way: Why might you want a copyright, how do you get it, and what does it get you? Let’s start with some basics:
A copyright is a bundle of rights granted to the author of an original literary or artistic work. Depending on the type of work, copyright gives the author the exclusive right to copy, distribute, or perform the work, or to create derivative works. In the eyes of the law, software and source code are a species of literary work, which gets your foot in the door.
You have a “copyright” from the moment your code is “fixed.” In the parlance of the Copyright Act, copyright vests the moment your original work of authorship is fixed in a tangible medium of expression. Once your store your literary work (i.e., code) on a hard disk, SSD, or in the Cloud, it is fixed and you copyright vests . . . provided that it is original and non-functional. More on that below.
A “copyright” is different from a “copyright registration.” “Copyright” is often shorthand for a copyright registration, which can be obtained by filing an application with the U.S. Copyright Office, paying a fee, and depositing copy of the work.
A copyright registration is a valuable enforcement tool. You cannot enforce your copyright in federal court unless it is registered. Moreover, registration opens the door to “statutory damages,” a type of damage award that does not require proof of actual monetary injury. These damages range from $700-150,000 per work infringed, with the higher end reserved for willful conduct. Delay in registering can limit statutory damages.
Copyright registration is inexpensive and lasts a very long time. In large part due to Disney’s lobbying efforts, a copyright registration now lasts for an extremely generous term of the life of the author plus 75 years (corporate authorship is different). The Copyright Office charges as little as $35 for registration and many attorneys will handle the filing for a flat fee.
So, copyright lasts a very long time, is easy to obtain, offers a variety of exclusive rights, and can be costly to an infringer. What’s the catch? Here’s a few things to consider:
Software doesn’t fit the traditional mold of creative expression. Software and copyright have long had an uneasy relationship owing mostly to what copyright scholars refer to as the idea-expression dichotomy. Copyright protects the creative expression of ideas, as opposed to ideas themselves, or other functional considerations.
Software, which is generally prized for its functionality and efficiency, is largely functional in nature (though my own experience as a software developer gives me an appreciation for it as an art form). To determine the scope of the copyright and whether it has been infringed, the creative elements (protectable) must be separated from the functional (not protectable and can be freely copied), along with elements in the public domain, an exercise bordering on the metaphysical.
The Copyright Act treats software differently in several respects. Shoehorning the square peg of software into the round hole of copyright required some adjustments to the Copyright Act to make the fit.
Take copying for example. Whether from DVD to RAM, RAM to registers in the processor, or otherwise, making use of the copyrighted software requires making a copy that would otherwise be copyright infringement. To address that problem, the Copyright Act expressly permits copying of software where it is an essential step in the use of the software, or done for archival purposes. Most literary works don’t have such an exception. Separately, software can’t be rented or leased without the permission of the copyright holder, a bonus that doesn’t extend to other copyrighted works.
The copyright owner still has the core exclusive rights to distribute the software, prepare derivative works, and the like, but unique and special treatment abounds.
Copyright registration requires a deposit copy. In the case of software, the Copyright Office requires the first and last 25 pages of the printed source code. Not to worry, though. Recognizing that source code may contain proprietary information or trade secrets, provisions can be made to block out sensitive information. (See www.goo.gl/D8hiac).
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The 366-page Copyright Act (www.goo.gl/Xbim12) dates to 1790, so this overview just scratches the surface of the law. Its limitations notwithstanding, copyright in your code is without question a valuable tool to keep in your IP arsenal, particularly given its accessibility, low cost, limited formalities, and protection against those who would borrow your work without authorization.
David is the founder of BOAG | LAW, PLLC, a boutique intellectual property firm based in NYC. He can be reached at email@example.com.