In this section we will explain how to register a copyright protection for a software program. These guidelines will apply regardless of the type of program, computer language, media (or download type), or purpose.
Application forms for copyright registration can be completed and submitted online or through paper application. The Copyright Office encourages to register online, where possible. Advantages of registering online include lower filing fees, faster processing time, and the ability to track the application. Copyright registration for a computer program falls under Literary Works. To file using paper application you use FormTX (Literary Work). However, if the audiovisual content of the program predominates (such as in a computer game), applicants should use FormPA(Performing Arts). Registration is accomplished by completing and sending the form, along with the registration fee and the appropriate deposit of “identifying material,” to the Copyright Office.
Copyright protection for a computer program extends to all of the copyrightable expression embodied in the program. The copyright law does not protect the functional aspects of a computer program, such as program’s algorithms, formatting, logic, or system design.[1]
The application for registration contains three essential elements:
- a completed application form;
- a non-refundable filing fee; and
- a nonreturnable deposit – that is, a copy or copies of the work being registered and “deposited” with the Copyright office.
As a general rule, a separate application, filing fee, and a deposit must be submitted for each work you want to register. The office, however, has established exceptions for certain types of works that allows you to register multiple works on an application (see multiple works Circular 34).
The Copyright office strongly encourages you to submit your application before you published your work.
III.A. Limitations
Note that each version of a computer program containing new, copyrightable authorship is considered a separate work. A separate application, filing fee, and deposit for each version must be submitted. Unpublished work with multiple versions maybe registered altogether as an “unpublished collection.”
A registration for each new version of a computer program covers the new material that the author contributed to that version, including any changes, revisions, additions, or other modifications that the author made to that version. Except in limited circumstances described below, the registration does not cover earlier versions of the same program or pre-existing material that may be contained within the source code.
A registration for a specific version of a program does not cover:
- Previously published source code;
- Previously registered source code;
- Source code in the public domain; or
- Copyrightable source code owned by a third party.
A registration may cover both new and pre-existing source code if:
1) The pre-existing source code has never been published or registered, and
2) The claimant owns the copyright in both the new and the pre-existing source code.
III.B. Important issues to address when completing your application
If the source code contains both new material and pre-existing material, make sure to complete the “Limitations of Claim” field and identify the material being claimed in the application.
If your deposit contains multiple version numbers or a date range in the copyright notice (e.g., © 2014, 2015, 2016), indicate in the “Note to Copyright Office” field whether these versions of the program have or have not been previously published or registered. If you fail to provide an explanation, the examiner may question the claim, which will delay the completion of your registration.
The Copyright office does not acknowledge receipt of an application as a matter of course. Therefore, to assure delivery of your application by mail it important that you send the application via registered or certified mail with a request for return receipt from the mail carrier.
Incorrect information in your registration runs the risk that the copyright protection may be lost, so it important to pay attention to the following information provided to Copyright office.[2]
1. Authorship & Nature of Authorship. With respect to section 2 of the form, the author is the party who actually created the computer program. If the program is “work made for hire,” then the author of the program is the employer, not the employee. Absent of contractual agreement the employer is presumed to own both the work and the accompanying copyright.
Unlike employees, consultants or contractors are ordinarily presumed to own the copyright in the programs they created. Without a written agreement the program is presumed to be created by a freelance programmer, consultant or a contractor. It is therefore important for companies who hire consultants, free-lance programmers or consultants to have a written agreement signed by all parties expressly providing that the program is for hire and is owned by the company.
2. Year of Creation and Publication. Section 3 of the form requires the applicant to state the year the program was created. A work is considered created when it is fixed in tangible medium for the first time by or under the authority of the author. Writing the final source code, for example, and saving it into the computer’s memory would be considered fixation of the program at that time. The date of creating must conform to the dates appearing on the deposit material.
Extra attention should be given for applications of computer programs that has been prepared in different versions. Each version constitutes a different work. However, when a single version of a computer program which is based in part on previously unpublished and unregistered version is being registered, only the latest year of creation is required. The program will be considered as a “new work” for purposes of registration.
For published computer programs, applicants must state the date and nation of publication. If a program is erroneously registered unpublished, the Copyright office generally will not allow an amended or supplementary registration but will require an entirely new application. “Publication” is generally defined by the Copyright Act as distribution, public performance or public display. Posting the computing programs on the website and permitting it to be downloaded with or without fee constitute “publication.” However, distribution of a computer program to a limited class and for a limited purpose would not be enough to render the program as “published.”
If the program is “unpublished,” the applicant should leave the date and nation of publication portion of Section 3 blank.
III.C. Deposit Requirement
A source code for the specific version of the computer program you want to register must be submitted to the Copyright office. A pdf file of you source code can be uploaded to the electronic registration system. Otherwise, you can print your source code and mail it to the Copyright office. In all cases, add the title and version number of the program to the first page of the code.[3]
Programs that are written in JavaScript or other scripted languages is considered an equivalent of a source code. Thus, you should submit the same number of pages from the script that would be required for a submission of a source code. On screen text, buttons, or commands are not appropriate to substitute this requirement.
- Code without Trade Secrets
Submit one (1) copy of the first twenty-five (25) pages and the last (25) pages of the source code for the specific version you want to register. If the source code does not have a precise beginning, middle, or end, submit fifty (50) pages that reasonably represent the first and last portion of the code. If the entire program is less than fifty (50) pages, submit the entire source code and notify the office that you are submitting the entire code.
- Code with Trade Secret
You must indicate in writing to the Office that the code contains trade secret material. Submit the following:
- One copy of the first ten (10) pages and last ten (10) pages, blocking out none of the code;
- One copy of the first twenty-five (25) pages and last twenty-five (25) pages, blocking out the portions the code containing trade secret material, provided that the blocked-out portions are less than 50% of the deposit;
- One copy of the first twenty-five (25) pages and last twenty-five (25) pages of the object code for the program, together with ten or more consecutive pages of source code, blocking out none of the source code;
- If the source code for the entire program is fewer than twenty-five (25) pages, one copy of the entire code, blocking out the portions of the code containing trade secret material, provided the blocked-out portions represents less than fifty percent of the deposit; or
- If the source code does not have a precise beginning, middle, or end, twenty to twenty-five (25) pages that reasonably represent the first and last portions of the code.
Regardless of the portion selected, submit the portion of the source code that contains the copyright notice (if any) for the version you want to register. The Copyright office strictly applies these rules for submitting source code containing trade secret material. It will refuse to accept a deposit that does not conform to the standards of redaction. Specifically, the blocked-out portions of the source code must be proportionately less than the portions that remain unblocked, and the unblocked portions must contain an appreciable amount of copyrightable expression.
- Derivative Computer Program
A program can be registered as a Derivative Computer Program if it contains new materials that is both original and sufficiently different from the pre-existing work. Few minor changes or revisions to a pre-existing work that were determined by the functionality of the hardware does not satisfy this requirement. Registration covers the new and revised material that the author contributed to the work. It does not cover any previously published, previously registered, or public domain material that may appear in the program or any authorship fully or partially owned by a third party.
To register you must submit a portion of the source code or any authorship fully or partially owned by a third party.
- If the new or revised material appears throughout the entire program, submit the first twenty-five (25) pages and last twenty-five (25) of the source code.
- If the new or revised material does not appear in the first twenty-five (25) pages of the source code, submit any fifty (50) pages of source code that contain new or revised material.
- If the source code contains trade secret material, submit a portion of the program code using one of the options discussed above regarding source code containing trade secrets.
Regardless of the option you select, submit the portion of the source code that contains the copyright notice (if any) for the version you want to register.
- Computer Programs on CD/ROMS
To copyright a computer program that is fixed on a CD-ROM, submit one complete copy of the entire CD-ROM package, including any instructional material for the program. In addition, submit a portion of the source code for the version of the program you want to register using one of the options discussed above.
- Computer Screen Displays
The screen display generated by the computer program is generally considered as the same work because the screen display is created by the program. If the same party owns the copyright of both the code and the display, any related screen displays can be registered with the same application. However, if different parties own the copyright of the code and the screen display, separate applications have to be filled.
If the program code and screen displays are owned by the same party, check the box marked “computer program” when completing the “Author Created” field in the online application. There is no need to expressly assert a claim in the screen displays. A registration for a computer program covers the copyrightable expression in the program code and any copyrightable screen displays it generates, even if the application does not specifically mention screen displays and you do not submit a copy of screen displays.
- HTML
For registration purposes, hypertext markup language (HTML) is not a computer program.
HTML cannot be registered with the Copyright office as a program and it does not constitute a Source code. Source codes are codes written by human being using computer languages e.g. Java, C, or C++/.
HTML cannot be registered as literary work even if it is written by a website design program containing sufficient amount of creative expression. To register HTML, you must submit a complete copy of the entire code; you cannot submit an isolated portion of the code using the options discussed below.
- Videogames
Videogames contains two major components: audiovisual material that appears on screen and the computer program that runs the game. Register the audiovisual material and the computer programs that runs it with one application, if the same party owns both the audiovisual material and the program.
If the works have been published, they must have been published together as a single unit. If the program and the audiovisual material were published separately, or if different parties own them, each element is considered a separate work, and you must submit a separate application for each.
If the videogame has been fixed on a CD-ROM, mail one complete copy of the entire CD-ROM package, including a complete copy of any accompanying instruction manual. If the videogame has not been fixed on a CD-ROM, submit identifying material, such as a photograph, that contains representative portions of the audiovisual elements of the videogame and a brief written description of the game. You can upload identifying material to the electronic registration system, or you can mail it to the Office in a physical form. To register a videogame together with the computer program that runs it, include a portion of the source code using one of the options discussed above.
References:
[1] Copyright Registration of Computer Programs, Circular 61, https://www.copyright.gov/circs/circ61.pdf, Accessed on 5/14/2019.
[2] “How and Why to Register Copyrights for Computer Program,” Findlaw, https://corporate.findlaw.com/intellectual-property/how-and-why-to-register-copyrights-for-computer-programs.html, Accessed on 5/14/2019.
[3] Copyright Registration of Computer Programs, Circular 61, https://www.copyright.gov/circs/circ61.pdf, Accessed on 5/14/2019.