Protecting your Ideas or Inventions From Others’ Infringement
What is a copyright?
The owner of a registered copyright enjoys the ability of blocking the unauthorized copying or public performance of a work protected by copyright. Depending on how old a work is, whether or not copyright was renewed, when the work was published (if at all), and whether or not it is a work for hire, the U.S. copyright term for a work may be 28 years, 56 years, the life of the author plus 50 years, 75 years from the publication date, or 100 years from the date of creation. The reader will appreciate that these terms are much longer than the 17-year or 20-year term of a U.S. Utility patent.
How do I copyright my software?
As my caller specifically asked me to address the issue of his training software, I’ve dealt with it specifically in this blog posting. However, training materials, and other print publications follow the same process.
The question of whether a work is copyrighted might, depending on who is talking, mean either of two things.
Someone who says a work is copyrighted might be trying to say that a copyright registration on the work has been obtained from the U.S. Copyright Office.
Another person who says a work is copyrighted might mean the work is protected by U.S. copyright laws. Lots of people say the former, but it is sloppy usage; the latter is more correct. In the United States an original work becomes protected by the copyright laws from the moment it is fixed in a tangible medium.
This provides several obvious examples of ways that a work could fail to be protected by the copyright laws: the work might contain no originality, or it might not be fixed in a tangible medium. Yet another example is if a work has gone into the public domain, perhaps because the term of copyright has expired or because the owner has dedicated the work to the public prior to the expiration of the copyright term.
From this it becomes clear that the answers to the question “What must I do to protect my software through copyright?” is, roughly, fix it in a tangible medium. This is a fairly simple step, one which probably occurred no later than when the author stored the software on a hard disk or floppy disk.
Generally once it is explained that works are automatically copyrighted from the moment the programmer saves the file to disk, the person asking the question restates the question “How may I register the copyright in my software?”
We will now address that question. It is, of course, possible for authors to obtain copyright registrations without representation by intellectual property counsel. The U.S. Copyright Office has a circular in PDF format on software copyright protection. There is the danger, however, that an improperly drafted copyright registration application could fail to preserve the trade secret rights in a work of software. For this reason, authors of computer software are encouraged to seek the advice of competent counsel.
There is another reason why the software author who is inclined to proceed pro se in applying for copyright protection might be well advised to seek advice of competent counsel. It is rare that the only steps needed to attend to a client’s intellectual property needs are copyright registration steps. It frequently develops that there are other aspects of the client’s business that also require attention. A work may contain material prepared by subcontractors or material recycled from a previous programming task. The software may call for design patent protection, utility patent protection, or trademark protection. The programmer may have failed to give enough attention to the placement and content of copyright notices. Dozens of other intellectual property issues may present themselves. A consultation with competent intellectual property counsel will improve the likelihood that these other aspects are considered. While there are several reasons to consult intellectual property counsel before filing a copyright registration application on software, it is also in our experience that an author who plans to register numerous similar works will find it fruitful to work with intellectual property counsel on the first one or two registration applications; after this it may be possible for that author to proceed filing subsequent registration applications with minimal assistance of counsel.
In other words, it should not be taken as a foregone conclusion that the legal costs for the first copyright registration would have to repeat themselves for subsequent copyright registrations. A good book on the subject of software copyright protection is, Copyright Your Software from Nolo Press, which you can purchase from Amazon Books. Professor Thomas G. Field, Jr. of the Franklin Pierce Law Center has written an excellent brochure called “Copyright for Computer Authors.”
Source: SBA Publications
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