Many software developers begin development on a software product and inquire when to submit their copyright application and what they should include in their copyright application sample deposit.
Generally speaking, a work may not be registered with the Copyright Office until it is fixed in a tangible medium of expression. Software developers may wish to register their works as soon as possible to protect against any possible infringements while the code is in development. A work that is fixed but still not complete may be registered, though federal copyright protections may not extend to the final version of the work, especially if it is a computer program. An additional copyright registration for the revised software product may be necessary to protect the software as completed. Circular 61 released by the Copyright Office provides that each separately published version of a computer program that contains new, copyrightable authorship must be registered separately, with a new application and fee. Registration of the first version may extend to the entire work if it contains no previously published or registered portions. Registration of any subsequent version covers only the new or revised material added to that version.
Pay close attention to use of the word “published” above. Publishing under copyright law is a unique concept. Works may be registered for copyright protection even if they are not published. If software is not published – that is, released for public distribution by sale or other similar transfer or released to distributors with the intent that the distributors release it to the public – the above requirements regarding an additional registration and fee may not apply. In such a case, a software developer may be able to register an initial version of software or a beta release of software that is not sold to the public and subsequently to release a revised version of the software that is protected by the initial copyright registration for the first version of the software.
Software developers also may want to consider that a copyright registration application, if filed online, costs $35, which is a small price to pay for the additional security of knowing both the initial and revised version or versions are protected by registered copyrights.
About the author
Julie Machal-Fulks:
As a partner at Scott & Scott, LLP, Julie Machal-Fulks leads a team of attorneys in representing and defending clients in legal matters relating to information technology. Her practice focuses on complex litigation ranging from privacy and network security, data breach notification and crisis management, intellectual property disputes, service provider negligence claims, and content-based injuries such as copyright and trademark infringement in software, the Internet, and all forms of tangible media.
Get in touch: jfulks@scottandscottllp.com | 800.596.6176