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| Patent Group | |
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| Computer Software and Intellectual Property Law | ||
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Computer Software and Copyright3. WHAT DOES IT TAKE TO GET COPYRIGHT PROTECTION?The Copyright Act states that copyright protection exists "in original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived . . . either directly or with the aid of a machine or device." The key terms here are "original" and "fixed."3.1 It Must Be OriginalThough the term "original" has been subject to interpretation by the US Copyright Office and by the courts, it generally means that the work must be original to the author and more than a trivial variation of a preceding work. It is not required that the material be different from every previous work. It need only embody a minimum level of creativity and be developed originally by the author claiming copyright. For instance, if two novelists, each working in complete isolation and unaware of each other's work, authored identical novels, both would fulfill the originality requirement of copyright.3.2 It Must Be FixedFixation requires that a work be embodied in a tangible medium of expression, which is sufficiently permanent to permit it to be perceived for more than a transitory period.In the case of computer programs, a tangible medium can include paper, hard drives, disks, tapes and ROM chips. Therefore, in order for the computer program to be protected, it must be fixed to a tangible medium that can be perceived either directly by human eyes or by aid of a machine. No matter how many different material objects embody the work, there
is only one copyright. The "work of authorship" is the program itself,
not the material objects that embody it. These are, not surprisingly, called
"copies." The program that is perceived from each embodiment represents
the same work of authorship in all embodiments.
*Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley National Laboratory. Available as LBL Report No. 38995. |
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