Copyright FAQs

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?

First, a bit of terminology. The question of whether a work is "copyrighted" might mean either of two things:

  1. A copyright was obtained by the U.S Copyright Office or
  2. The work is protected by U.S copyright laws.

In the United States, an original work becomes protected by the copyright laws from the moment it is fixed in a tangible medium. Examples of how a work might not fall under copyright protection include:

  • The work contains no originality;
  • The work is not fixed in a tangible medium;
  • If a work has gone into the public domain due to a copyright expiration or the owner dedicated the work to the public prior to the expiration of the copyright term.

 

What Must I Do to Protect My Software Through Copyright?

The short answer: 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?" It is, of course, possible for authors to obtain copyright registrations pro se, i.e., without representation by intellectual property counsel.

The U.S. Copyright Office has a information 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 a copyright attorney.

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. Typically speaking, it is rare that the only steps needed to attend to a client's intellectual property needs are copyright registration steps. 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.

When Must I File a Copyright Application?

Under U.S. copyright law, a copyright application can be filed many years after the initial publication of a work and still be eligible for a copyright registration. This does not, however, mean that you should put off filing your copyright registration. Even though there is no particular time limit for filing a copyright registration application, this should not lull the author into a false sense that copyright registration is unnecessary or that it need not be done promptly.

The registration of a U.S. copyright offers many benefits to the owner of the copyright such as:

  • It creates a presumption that ownership of the copyright is as set forth in the registration;
  • If you prevail in court against the unauthorized copier, you may find yourself eligible for statutory damages and for recovery of attorney's fees. The damages and attorney's fee benefits that come from registering a copyright in advance of infringement are so great, and the cost of registering a copyright is so small, that it is wise to attend to copyright registrations promptly.

 

Can I Register a Copyright Myself?

Many types of copyright registrations are easy and straightforward to do, in which case a layperson can obtain copyright registration for a small fee and a bit of one's time. In the area of computer software it is often helpful to retain experienced counsel to prepare the copyright application. The reason for this is that for any copyright registration application, there is the requirement that the applicant deposit a copy of the work with the Copyright Office; the deposit becomes available to the public. In the particular case of software it is possible to deposit less than all of the work, which helps to protect trade secrets.

Advice of experienced counsel is also helpful in determining whether the application is complete, e.g., whether it needs to disclose previous works upon which the present work is based. Failure to disclose prior works runs the risk that copyright protection will be lost later. Another trap for the unwary is characterizing a work incorrectly as a work-for-hire when it is not; this, too, runs the risk of later loss of copyright rights.

What does it cost to register a copyright?


The filing fee for registering a copyright with the U.S. Copyright Office varies depending on the year.

What Exactly Does "Copyright" Protect?

Copyright, a form of intellectual property law , protects original works of authorship, including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect

  • Facts
  • Ideas;
  • Systems or methods of operation. (Although it may protect the way these things are expressed).

 

Why Should I Register My Work if Copyright Protection is Automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law.

How Do I Register my Copyright, How Long Does it Take, and What does it cost?

To register a work, you need to submit a completed application form, a nonrefundable filing fee and a nonreturnable copy or copies of the work to be registered. The time the Copyright Office requires to process an application varies, depending on the amount of material the office is receiving. You may generally expect a certificate of registration within approximately eight months of submission. Generally, each work requires a separate application.

How Long Does Copyright Last?

The Sonny Bono Copyright Term Extension Act, signed into law on October 27, 1998, amends the provisions concerning duration of copyright protection. Under the law, the terms of copyright are generally extended for an additional 20 years.

For works created after January 1, 1978:

Copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author's death. For anonymous works, works made under pseudonyms and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first.

For works created but not published or registered before January 1, 1978:

The term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047.

For pre-1978 works still in their original or renewal term of copyright:

The total term is extended to 95 years from the date that copyright was originally secured.