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Copyrights, Patents, and Trademarks FAQs

Written by: Start Your Business

Article Overview: 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.

Copyrights, Patents, and Trademarks FAQs

Copyrights, Patents, and Trademarks 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, 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. A different person who says a work is copyrighted might mean that 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 pro se, i.e., 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. In our experience, 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."

When must I file a copyright application?

Those who are familiar with the rather strict time limits for filing a U.S. patent application may find it to be a pleasant surprise that under the 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. Stated differently, 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. For example, it creates a presumption that ownership of the copyright is as set forth in the registration. In addition, if you happen to have the good luck that you registered the copyright on a date earlier than the date of an act of unauthorized copying or under certain other circumstances set forth in the copyright law, 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. Many people successfully file copyright registration applications on their own without the assistance of counsel. However, some authors find it convenient to pay someone else to do it for them simply to avoid the paperwork. Additionally, those whose authorship is in computer software may wish to retain competent counsel to assist them in filing registration applications, since filing the application incorrectly could conceivably result in loss of trade secret rights, or, in an extreme case, could result in loss of all copyright rights. For example, there are steps which may be taken in filing a copyright registration application in software which preserve trade secrets that are contained in the software. Additionally, since most software is produced in versions, with each version based in part on previous versions, there are certain disclosures which must, under certain circumstances, be made in the registration application to acknowledge the older content. To give one example, the owner of the dBase programming language came very close to losing all copyright rights in the language due to failure to disclose that portions of the work were based on older works.

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 little more than $20 and a bit of one's time. In the area of computer software, however, 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. (The Copyright Office has a helpful circular on this subject, in PDF format.) Experience is helpful in determining what, exactly, needs to be deposited with the Copyright Office. 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?

At the time of writing (1998), the filing fee for registering a copyright with the U.S. Copyright Office is $20 (U.S. Copyright Office brochure on Fees in PDF file.) The Copyright Office will do a registration on an expedited basis as well; for example, if litigation is imminent. An extra fee must be paid and the application has to be submitted to a different address for expedited registration. The factors described above explain why the lawyer's fees in a software copyright registration application are likely to be at least $200-$300, exclusive of copying and courier charges.

What 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. See Circular 1, section What Works Are Protected.

How do I reach the Copyright Office and where do I get application forms?

The Public Information Office telephone number is (202) 707-3000. To order application forms, the number is (202) 707-9100; TTY is (202) 707-6737. The mailing address is Copyright Office, Library of Congress, 101 Independence Avenue, S.E.,Washington, D.C. 20559-6000. The Copyright Office is located at 101 Independence Avenue, S.E., Washington, D.C., in the James Madison Memorial Building, Room LM-401, of the Library of Congress. Hours of service are 8:30 a.m. to 5:00 p.m. eastern time, Monday through Friday, except Federal holidays. The nearest Metro stop is Capitol South. You may get forms from the U.S. Copyright Office in person, by mailing in a request, or by calling our 24-hours-per-day forms hotline: (202) 707-9100. Some public libraries may carry our forms but we do not maintain a list of those libraries. Forms may also be downloaded from our website.

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. See Circular 1, section Copyright Registration and Circular 38b (PDF file) on non-U.S. works.

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 of $30, and a nonreturnable copy or copies of the work to be registered. See Circular 1, section Registration Procedures. 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 8 months of submission . The current filing fee is $30 per application. Generally, each work requires a separate application. See Circular 4.

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. Effective immediately, the terms of copyright are generally extended for an additional 20 years. Specific provisions are as follows:

* 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 and pseudonymous works 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. For further information see Circular 15a (PDF file).

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