A copyrightable work must be an original work, set down in a tangible, or fixed form. Included are traditional written works, and other works such as videotapes, film, music, and paintings. Computer software may be protectable through copyright, as explained below. Copyright is a specific form of intellectual property protection that protects only the expression of an idea, but not the idea itself.
The Copyright Act of 1976 states that an author has statutory copyright protection for a work from the time it is put in a fixed, tangible form. Authors obtain a number of exclusive rights under copyright protection:
- The right to reproduce the work.
- The right to prepare derivative works based on the original.
- The right to distribute copies to the public.
- The right to perform the work publicly.
- The right to display the work publicly.
For works owned by the original authors, copyright extends for the author's life plus 50 years. When the author is an employer rather than the individual(s) who prepared the work (a "work for hire"), copyright extends from the earlier of 75 years from the date of publication or 100 years from the time the work was created. Under the two major concepts of fair use and library reproduction rights, the 1976 Copyright Act gives the general public the right to make very specific limited use of copyrighted works- usually for educational purposes- at no cost and without permission of the authors.
The copyright notice attached to a work intended for publication, includes the name of the copyright owner, the year in which the work is published and the copyright symbol:
© 2006 Lee G. Author
© 2006 University of Wisconsin-Milwaukee
The year given in the copyright notice should not be updated each time the work is printed, copied, or published.
Changes in the Copyright Statute
On March 1, 1989, major changes in the copyright statute became effective. The United States became a member of the Berne Convention for the Protection of Literary and Artistic Works, which is considered to be the best of the international treaties for the protection of copyrights.
One important change is that the copyright notice is no longer required for works published after March 1, 1989. All works published for the first time after that date may be assumed to be automatically copyright-protected, even though no copyright notice appears.
The term computer software is used to designate computer programs, in the broadest sense, and is meant to include users' manuals and other explanatory material that accompany computer programs, and computerized databases. Also included are microcodes, subroutines, operating systems, high-level languages, application programs in whatever form expressed (machine or assembly language, source or object code) or embodied (chip architecture, CD-ROM, disk or tape storage, program listings).
The primary goals in protecting and managing software are to promote the widest possible distribution for the benefit of the public, and to produce revenue for the author of the software and the department. There are two basic approaches to distribution:
- The author or the department can distribute directly to users for a fee or at cost.
- The author, or in some cases the University, can make a distribution agreement with a commercial entity.
Although some software can be copyrighted and/or patented, the statutory situation surrounding its protection is confusing and constantly changing. Accordingly, authors should be especially careful in protecting and distributing software. Some starting points and tasks to consider in protecting and disseminating software are the determination of
- Best method for broad distribution of the software (for a fee or at cost directly by the author's laboratory, or through an agreement with a commercial organization).
- Disposition of income resulting from distribution.
Whether or not commercial distribution of software is anticipated, it is important to protect software so that the author or University will be able to control and facilitate distribution, insure the integrity of the work, and protect the rights of the authors.
Under current U.S. law, not all computer software may be patentable. It is, however, covered by the Copyright Act of 1976, under which computer software (as well as all other copyrightable work) is protected by federal statute from the moment it is "fixed" in a tangible form.
The steps for obtaining copyright protection for computer software are the same as those for other copyrightable works. However, the option to formally register the software is ordinarily not pursued. Registration requires deposit of copies of the work with the Copyright Office in Washington, D.C. Such deposit of unpublished software may serve to make the work more easily accessible to non-authorized users who, by making slight changes, may create a "new work." Under the present law, it is possible that this "new work" will not be considered an infringement of the original. Copyright protection can be claimed without registration or the deposit of copies with the Copyright Office. Registration is primarily useful if litigation occurs. Works can be registered at the time a suit is brought.
Although it is important to claim copyright protection, copyright alone is not always adequate protection for software. Copyright law protects the form in which ideas are expressed, not the ideas themselves. Therefore, elements of software can sometimes be utilized without infringing the copyright in the software. From a commercial point of view, copyright protection for software is frequently inadequate.
Software As Proprietary Information
The limited protection offered by copyright law can be enhanced by designating software as "proprietary information" and requiring users to treat it as such. Treating it in this way demonstrates the author's view that the intellectual property is valuable and should be protected against potential infringers. In addition, establishing a proprietary position is crucial to attracting outside organizations capable of distributing the software. Generally, commercial distributors will not undertake marketing efforts unless software has been protected as fully as possible from the start both by copyright and by the requirement that users treat the software as proprietary information. The requirement that software be treated as proprietary information would apply to the software and accompanying materials only (e.g., programs and manuals) that are readily usable by others and not on the basic scientific concepts upon which the software is based. In keeping with the University's educational and scholarly purposes, such basic concepts should be openly available through publication or other means.
When distributing software, authors should take the following protective steps:
- Inform Office of Technology Transfer if the author wishes to copyright the software in UWM's name before distributing it to users.
- Consult with Office of Technology Transfer if the software results from an externally sponsored research agreement so that contractual obligations and regulations affecting ownership, disposition of rights, and distribution and use of the software can be determined.
- Make certain that the appropriate copyright notice is prominently displayed on the work, that is, on all displays of the programs as well as on all tapes, disks, manuals, and associated materials (See samples below).
- Do not release software for loan, review, sale, lease, in-house use, or other purposes without first having fixed one of the sample labels shown below to the tapes, disks, manuals, or to their components of the software
Sample Copyright Notices
PROPRIETARY INFORMATION NOTICE THIS DISK (TAPE) CONTAINS PROPRIETARY INFORMATION THAT IS THE PROPERTY OF (the owner/s). THIS DISK (TAPE) IS FURNISHED TO THE AUTHORIZED USERS OF (Names of Programs) SOLELY TO FACILITATE THE USE OF SUCH PROGRAMS AS SPECIFIED IN WRITTEN AGREEMENTS, AND EXCEPT AS PROVIDED IN SUCH WRITTEN AGREEMENTS SHALL NOT BE REPRODUCED OR COPIED OR USED, IN WHOLE OR IN PART, WITHOUT THE WRITTEN PERMISSION OF (the owner/s).
PROPRIETARY INFORMATION NOTICE THIS MANUAL CONTAINS PROPRIETARY INFORMATION THAT IS THE PROPERTY OF (the owner/s). THIS MANUAL IS FURNISHED TO THE AUTHORIZED USERS OF (Names of Programs) SOLELY TO FACILITATE THE USE OF SUCH PROGRAMS AS SPECIFIED IN WRITTEN AGREEMENTS, AND EXCEPT AS PROVIDED IN SUCH WRITTEN AGREEMENTS SHALL NOT BE REPRODUCED OR COPIED OR USED, IN WHOLE OR IN PART, WITHOUT THE WRITTEN PERMISSION OF (the owner/s).
When software has potential commercial value as well as academic or research value, the following additional steps can be taken:
- Use letter agreements for distribution to users, inside or outside the University, who want to use the software for research purposes only. Examples of such letters can be supplied upon request to TTO.
- In general, do not make commitments to install, service, or maintain software in any licenses or other distribution agreements, whether formal or informal.
- When income is anticipated, consult with TTO for advice on its disposition.
- Document each release thoroughly by recording addresses of recipients, number of copies and date of release.
It is important that copies of all letters or other agreements stating the terms of release are retained. Thorough documentation will demonstrate that no unauthorized, undocumented release of the software was made, and that all possible efforts were made to protect it, in the event future commercial distribution is desired, or defense against infringement becomes necessary.