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AUGSD Member Article: Copyright Law
(submitted March 24 1997)

© 1996 David B. Himelstein. All rights reserved.

Copyright Law

This article provides some fundamental information about copyright law and its application to computer software.

How Do I Copyright My Software?

Superficially the answer is simple: you write or type it on a piece of paper or enter it into a computer. The act of fixing your source code (or designs or definitions) onto a tangible medium is sufficient. However, other questions are pertinent: How can I tell who owns the copyright? What do the copyright notices look like and what good are they? And more.

To what does the copyright law apply?

The statute says that copyrights apply to original works of authorship fixed in any tangible medium of expression.

Original means basically not copied. The work need not be too original, but may not be merely a trivial variation of another work. The requirement for originality is not difficult to meet and is certainly met whenever a programmer creates new software.

Works of authorship specifically excludes an idea, procedure, process, system, method of operation, concept, principle or discovery. So, for example, an idea cannot be protected by copyright law, only the expression of the idea. A different expression of the same idea is generally not a copyright infringement. This prevents an author from obtaining a monopoly on an idea merely by writing the idea onto paper.

Fixed in any tangible medium of expression includes a piece of paper and computer disk or tape. Even though RAM is volatile RAM is included. Excluded is oral expressions, of course. Certain subject matter is excluded from copyright protection even if it meets all the other requirements, e.g. facts (but certain compilations of fact may be protectable, as in a database), useful articles, typefaces, semiconductor chips and mask works (protected by a different law), ideas. Also, the merger doctrine provides that, when an idea and the expression of the idea are so closely linked that it is difficult or impossible to separate them, then even the expression is not protected by copyright law. This merger doctrine played a substantial role in many copyright infringement suits in which one company tried to protect either its screens or its sequence of menu commands.

Who Owns the Copyrights?

The author owns the copyrights. Authorship applies to either the individual creator or to a "work for hire" (an employee or consultant). When an individual creates an original work, that individual owns all the rights under copyright law. An employer owns the rights, when an employee working within the scope of his/her employment creates a work, unless there is a writing to the contrary signed by both parties. An independent consultant owns the rights to a work created by that consultant, unless a writing exists which effectively ensures that copyright ownership is to be held by the hireror. Whether or not a programmer is working within the scope of his/her employment requires an evaluation of many factors. Whether a person is an employee or an independent consultant also requires the evaluation of many factors. In either case the results may not conform to what a layman might expect.

What Are Copyright Notices and Should I Use Them?

Copyright notices consist of the "c" with a circle around it or the word "Copyright" or the abbreviation "Copr." plus the year plus the name of the owner of the copyright, i.e. the name of the individual, corporation, the partnership or whatever legal entity owns the copyright. For better protection under international law you should add "All rights reserved."

Since a work is copyrighted by virtue of the fact of recording on a tangible medium of expression, the notice is not needed to provide copyrights. The notice merely prevents anyone who infringes the copyright from claiming that they did not know there was a copyright and provides other legal benefits.

Such a notice should be placed at the beginning of each source code subroutine or function as a part of its heading. (It is good programming technique anyway to have a standard header which would include the purpose of the subsequent code.) The notice should also appear at least once on the screen when the system is first started and in the window which displays the "About . . ." information. It is also a good idea for the notice to appear in ASCII in the object code so that, if a person is viewing the object code directly in ASCII, they will see the notice. The copyright notice should also appear at the beginning of any documentation or design documents.

Registration of a copyright with the US Copyright Office is not required but does provide certain rights and is recommended. You must register before you can sue an infringer. If the registration is accomplished soon enough after first publication, the copyright owner secures additional legal benefits, such as the statutory damages and possibility of obtaining attorney fees.

The legal information contained above is informational in nature and cannot be considered legal advice. Every situation has its own factual context and cannot be judged without that context.

Mr. Himelstein is a San Diego attorney who helps clients to provide legal protection for their intellectual property associated with computer software and hardware and assists them in general business matters.

This is the first in a series of articles on legal issues affecting software and the computer industry. If you have legal questions or require services, visit Mr.Himelstein's web site at or contact Mr. Himelstein:

By voice: (619) 674-6177

By facsimile: (619) 674-6176

By mail: P.O. Box 28337, San Diego, CA 92198

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