Thanks to headlines featuring big companies like Google and Oracle, copyright law is an often-discussed but frequently-misunderstood topic. This article was created specifically with software developers and designers in mind.
As software designers or developers, you have the important task of ensuring that a program works the way it is supposed to while being efficient, user-friendly, and unique. After all the creativity that is poured into making a program work just right, it’s fair to say that a well-designed software program is a work of art.
From a legal perspective, a software program is a complex work that includes both functional and artistic elements. This means that software programs may be protected by different types of intellectual property (IP) law. IP law includes copyright, trademark, trade secret, or patent law. Some of these areas of IP may overlap depending on the elements of a particular software program. This can be confusing for those who are not experts in IP.
This article is here to provide you, as a software designer, with a basic overview of one type of IP law, copyright law, as it relates to your software design projects.
Copyright law is a type of intellectual property law that protects creative works, which can include things like plays, movies, manuscripts, paintings, drawings, songs, letters, and many other things. In the United States, the Constitution provides that copyright law protects “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Most other countries that are members of the World Intellectual Property Organization (WIPO) have similar definitions.
Copyright law does not protect ideas, procedures, methods of operations, or mathematical concepts (though other types of IP may protect them under certain circumstances). In other words, copyright law is about protecting a particular expression of an idea, not functional elements of a given work.
Copyright law can apply to all kinds of technological works that are used with computers, tablets, smartphones, or video game systems. This includes apps, computer programs, databases, spreadsheets, screen displays, and even virtual reality environments. Copyright also applies to works that are used or distributed on the internet like websites, blogs, and other online content.
As any designer knows, software design is an integral part of the process of creating innovative software solutions. The best software programs are easy to use, beautifully designed, or solve a problem no one else has solved. This work necessarily involves creativity and originality. As a software designer, you are a problem solver, but you could also be called an author or artist. There are many aspects of software that involve creative expressions, such as elements of the user interface, storyboards created to improve the “flow” of the software, or even the source code itself.
Software programs consist of both “literal” and “non-literal” elements. From a legal standpoint, a program’s literal elements consist of source code and object code. Courts have defined “non-literal” elements of a computer program to include “structure, sequence, organization” (a specific language used in a 1986 U.S. court case) as well as screen displays, menu structures, and user interfaces. Both literal and non-literal elements may be protectable by copyright.
Copyright is generally considered to be inherent in the “fixed form” of the work regardless of whether the work is published or unpublished. To be in a “fixed form” simply means that the expression has been recorded in some kind of tangible medium.
For an artist, the expression may be in “fixed form” when he has moved past thinking of what he is going to paint and has actually started putting paint on canvas. For a musician, it might be when she writes down the tune in her mind or makes a recording. For a software designer, it might be when you sketch out a storyboard, create a new character, or write lines of unique code.
Worldwide, copyright is generally considered “inherent” in the work, meaning that the copyright exists as soon as the work is written down or otherwise recorded as explained above. In countries that are signatories to the Berne Convention – all 172 of them – no formal registration is required to create copyright protection, so typically registration isn’t necessary for every work. However, at least in the United States, copyright registration is generally required before any damages would be awarded in an infringement action.
Fortunately, copyright registration is generally a much simpler and less time-consuming matter than obtaining other types of IP rights such as patents or even trademarks and does not necessarily require the assistance of an attorney. In the United States, you can seek copyright registration online with the U.S. Copyright Office. Generally, to register digital content, you will determine authorship and then choose to submit the work as a literary work, work of the visual arts, or work of the performing arts depending on which is most appropriate for the program or element of the program you are trying to protect. For example, source code would probably be submitted as a literary work, while graphics might be submitted as works of the visual arts.
In general, copyright laws provide the owner with exclusive rights over the reproduction, preparation of derivative works, distribution, and public performance and display of the copyrighted works. Some other specific rights may include:
- the right to translate;
- the right to make adaptations and arrangements of the work;
- the right to perform in public dramatic, dramatico-musical and musical works;
- the right to recite literary works in public;
- the right to communicate to the public the performance of such works;
- the right to broadcast;
- the right to make reproductions; and
- the right to use the work as a basis for an audiovisual work.
Note: You can review a list of exclusive rights provided by the U.S. statute here.
Obviously, these rights are critical for the distribution and transformation of software programs from one format to another. For example, if a software designer creates a popular computer game for PC, it would be necessary to have the right to create a derivative work in order to be able to create an app version of the same game for the iPhone.
As discussed above, copyright protection extends to the particular form in which an idea is expressed, not the idea itself. In the case of software, copyright law would protect the things like the source and object code, unique elements of the user interface, or other creative works and expressions related to the software such as characters and settings created for a game. It would not protect the idea of a particular type of software program, nor any necessary functional elements.
The basis for legal protection for software programs is well-established in both the U.S. and in Europe. In the United States, the Copyright Act specifically confirms that software is eligible for copyright. In Europe, the Computer Programs Directive provides guidance regarding the legal protection of computer programs under the copyright laws of the European Union.
What specific elements of software programs have been declared protectable by copyright? First, source or object code are both considered to be “literary works” and copyright law clearly protects them. Way back in 1983, the Third Circuit ruled in Apple Computer, Inc. v. Franklin Computer Corp. (714 F.3d 1240) that both a computer’s operating system as well as binary code are both protectable by copyright. However, since the courts have also ruled that copyright can provide protections for software developers that cover more than the code. Copyright can cover both the literal elements of software, such as source and object code and non-literal elements including “inter-modular relationships” and “general flow.” The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work.
Infringement can be relatively easy to prove if source code or object code was copied from one program to another without permission. However, it can be more subjective to determine whether or not infringement has occurred if the accused copying takes place in the non-literal elements of a program. In the 1992 case Computer Associates Int. Inc. v. Altai Inc. (982 F.2d 693), the Second Circuit developed a test called the “abstraction-filtration-comparison” (AFC) test in order to determine whether or not there is “substantial similarity” between two computer software programs that could be indicative of infringement. The AFC test is used to determine whether non-literal elements of a software program were copied by comparing protectable elements of the programs in question.
Keep in mind, however, that copyright law does not protect functional elements of the software. According to 17 U.S.C. Section 102, it does not protect against copying of any “idea, procedure, process, system, method of operation, concept, principle, or discovery” in the software. For example, let’s say you create a software program that helps users make a budget. Copyright law does not protect the idea of a budgeting software program. It only protects the specific expressions of that idea, so copyright law doesn’t prevent other people from writing their own budgeting software programs.
Maybe your program has some kind of friendly character that is featured in the user interface. Another software program could also have a character featured in the user interface; they just can’t copy your character.
Here’s another software example – let’s say you have the written source code for a new game app. A friend sees your code, likes the idea, and copies your code without permission to use as part of another app. This is infringement because source code is copyrightable. If the other person simply creates a similar game, however, without using any of your code, he hasn’t infringed on your code’s copyright (though depending on how similar the game is there might be some other type of infringement).
Courts are still deciding what elements of software are considered functional. For example, Oracle and Google have an ongoing dispute regarding Google’s use of Oracle’s Java APIs. Google created its own language for the Android OS, but they used Java’s APIs so that developers like you could write programs that would work on Android. At the district court level, the judge ruled that APIs are functional and cannot be copyrighted. However, on appeal, the Federal Circuit reversed the decision. The case returned to the district court where Google successfully asserted a “fair use” defense instead. However, Oracle has appealed the case again, so it remains to be seen how the law will settle in this instance.
One other thing to note before moving on – copyright does not protect against the independent creation of similar works, unlike patent law. Copyright law protection is strongest when you can show that someone actually “copied” your idea. So if another software designer independently comes up with a program that is very like yours, copyright law probably cannot help you very much.
The owner of the copyright is the “author” of the work. As a software designer, you are the “author” of the work and the copyright belongs to you. However, many software programs are created as part of a team, under an employment agreement, or in another work-for-hire scenario. Therefore, in these situations, the copyright is frequently going to be assigned to the employer, who will then be the owner of the copyright and will control the right to use the expressions protected by that copyright in the future (i.e., in derivative works). As always, read your employment contracts, (including any non-disclosure agreements) very carefully in order to make sure you understand the consequences of working with them as it relates to IP.
In general, in the United States or any other country that is a signatory to the Berne Convention, the duration of a copyright is the author’s life plus fifty years. In the case of software created by an employee in the course of his or her employment, the resulting “work made for hire” would be protected by copyright law for seventy-five years from publication. Thanks to active lobbying and policy changes in this area, there are other exceptions, but in general, the fifty-year rule will apply.
As software designers, your work deserves to be protected as much as any other author’s does. Though this article provides only an overview, perhaps this information will be helpful to those of you who work each day to create and improve the software programs that enrich our lives.