How to Copyright Source Code in the United States of America?

INTRODUCTION

A source code is defined as a code that is created by a programmer. It is regarded to be the main and fundamental component of a computer program.

In the United States of America, as soon as a work is produced, recorded, drawn, or made in tangible form, it becomes automatically protected in accordance to the copyright laws of the United States of America.

However, in order for complete control and protection, a source code is to be regarded as an intellectual property and part of computer software protection and it must be protected as one as well.

A software and its source code count as intellectual property and are hence regulated by the United States intellectual property law. For a full protection of computer software, it must be understood that there are two ways to protect a source code, either through a patent protection or a copyright protection.          

The main regulation governing the protection of a source code in the United States of America is the Copyright Act 1976. The Copyright Office of the United States of America has been created by Congress in 1987.       

For a start-up or a business to succeed at current multinational and competitive times, it must be known that the protection of a source code in the United States of America is essential.

EXISTING COPYRIGHT LAW IN THE UNITED STATES OF AMERICA

Before understanding how to copyright a source code in the United States of America, it is essential to understand which rules and regulations (laws) govern copyrights first.

The Copyright Act of 1976 is the federal statute that mainly governs the registration and existence of copyrights in the United States of America. The Copyright Act of 1976 defines a source code as a literary work in accordance to section 101 of the Title 17 of the United States Code.

Title 17 of the United States Code includes all the amendments that are enacted by Congress of the United States of America and such include the Semiconductor Chip Protection Act of 1984, and the Vessel Hull Design Protection Act.

The Copyright Office of the United States of America is responsible for all the three mentioned above.

The United States copyright law is contained in chapters one through eight and ten through twelve of title 17 of the United States Code whereas the Copyright Act of 1976 provides the basic framework for the current copyright law.

WILL UNITED STATES OF AMERICA COPYRIGHT LAW PROTECT MY SOURCE CODE INTERNATIONALLY?

Just like every other country, it is impossible to automatically protect a source code internationally. It depends on the national law of each country. However, most of the countries offer protection to works in accordance with certain conditions in case they are parties to international conventions or treaties.

180 different countries have been parties to a treaty named as the Berne Convention that is administered by WIPO (World Intellectual Property Organization). WIPO sets the terms and conditions as well as standards related to the protection of copyrights globally.

Sadly, there are certain countries that may still impose their national laws where people applying for the protection of their copyrights will have to follow and abide by such laws.

WHAT ARE THE BENEFITS OF COPYRIGHTING OUR SOURCE CODE?

To copyright your source code means to register it in accordance to the rules and regulations of the Copyright Act of 1976.

There are various benefits of copyrighting your source code (literary work). These include the following:

  1. When you register your source code, you claim 100% its rights and this includes the right to sue for infringement. It must be noted that without copyrighting your source code or computer software, it is not possible to sue for infringement and hence copyrighting it is necessary;
  • Despite the fact that your source code is protected at the moment of its creation, registering it is necessary and advantageous due to the fact that it provides a public record for your copyright claim;
  • You can easily make copies of your source code without having to fear someone else stealing it;
  • You can publicly use your computer program (source code) without also having to fear someone else stealing it;
  • You are entitled to make derivative works or amend your source code;
  • Registering the source code within three months after publishing it or prior to anyone infringing it, you become entitled to seek attorney fees and statutory damages in the court of law. This is different to the case when you file a claim without registration where the only damages possible to be recovered are from the loss you suffered from infringement;
  • License and sell the code or the software itself to any natural or legal person.

HOW TO REGISTER THE COPYRIGHT SOURCE CODE?

Registering the Copyright Source Code Physically

The United States Copyright office accepts applications to register a computer program (source code) on two different forms; Form TX and Form PA. In terms of source codes that are not computer games, Form TX is normally used.

Form TX must be completed and sent along with a fee of $30 as well as any other appropriate deposit of “identifying material,” to the Copyright Office.

Upon sending the application, it should be sent by a registered mail with a request for a return receipt to confirm that the Copyright office received the application. The registration takes around six months – one year to be registered.

After that time, the applicant will receive a certificate of registration, a letter/ phone call asking for additional information, or a registration refusal.

Registering the Copyright Source Code Online

To register your source code online, you’ll need to use the online filing system at the Copyright Office (known as “eCO”).

Registering your computer software (Source code) online, you’ll have to do the following:

  1. Complete an online interview;
  2. Pay the fee;
  3. Upload the copies of the work or the source code itself.

You’ll have to register and create an account on eCo and simply follow the procedure enlisted on the website.

There are various benefits of registering online than to physically submit the papers and these are enlisted below:

  1. It is faster;
  • The payment is secure since it is done via credit card/ debit card/ Mastercard / Copyright Office deposit account;
  • You are able to track the status of your application online;
  • You are able to upload certain categories of deposits directly into eCO as electronic files.

HOW LONG DOES THE COPYRIGHT LAST?

Several factors are relevant to how long does a copyright last. First of all, it is important to note that any works that are created after January 1, 1978 last for the life time of the author plus an additional 70 years after his/her death.

In terms of anonymous work, a pseudonymous work, or a work made for hire, they last for a term of 95 years from the year of their first publication or for a period of 120 years from the year of their creation.

WHAT ARE THE REMEDIES OF INFRINGEMENT?

Infringing a copyright is considered to be a very serious problem in the United States of America and hence, Congress has imposed strict fines and penalties applicable to infringers.

The copyright owner is entitled to recover the amount the money he/she lost due to the act of infringement or as its result. These are referred to as “actual damages”.

In addition to that, the copyright owner may also seek “statutory damages”. To seek these, as mentioned above, the copyright must be registered within the United States Copyright Office prior to the violation. Statutory damages are based on the amount of works that were infringed. In case the infringement was not willful, the statutory damages are in the range from $750 to $30,000 for each infringed work. In case the infringement is innocent, then the range may be reduced to an amount that may not be less than $200 per work infringed. Lastly, for willful infringement, the statutory damages may rise up to $150,000 per infringed work.

Nonetheless, in addition to damages, the court of law may as well order the defendant to pay the copyright owner’s attorney fees as well as the expenses spent on filing the claim.

WHAT’S MORE TO COPYRIGHT IN THE UNITED STATES OF AMERICA?


Despite the fact that most persons protect their computer software (source code) as a copyright, in the United States of America, you can protect your source code as a patent as well.

In case you decided to protect your computer software as a patent, then you’ll protect your software by protecting the “unique” features and things your software can do instead of focusing on protecting the source code itself.

In contrast to copyright protection that may be protected in various countries based on international conventions and treaties, a computer software that is protected as a patent will only be protected in the United States of America. You’ll have to apply for such protection at The European Patent Office that covers some states for instance.

Another issue is, for example, the European Patent Convention indicates that computer programs “as such” can’t be patented as per article 52.        

FEDERAL VS STATE LAW

In the United States of America, it is the Federal statute (Act of 1976) that governs copyright law.

In accordance to the laws of the United States of America, states cannot enact their own laws in order to protect the same rights that are illustrated by the Copyright Act. This means that states are not entitled to pass a law to extend certain copyright protection on certain works in the state itself that are beyond the term of protection provided by the Copyright Act.

Henceforth, the United States copyright law is created and as well regulated by the federal government. The federal copyright office of the Library of Congress is responsible for the copyright laws.

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