Computer Software and Copyright
4. WHEN IS A COMPUTER PROGRAM PROTECTED BY COPYRIGHT LAW?
A computer program has copyright protection the instant it is fixed. This
means that the author has the bundle of rights described in
Section
1 once the fixation requirement is met. The author owns the source
and object code and has the right to determine how, when, and by whom it
is used.
This protection is automatic. The author does not have to file any formal
documentation with local, state, or the federal government in order to
obtain a copyright for her original and fixed literary work. It is granted
to her by federal law. She has the right to place a copyright notice on
her work and inform the world that she is exercising her copyright.
Example
Hunter Hacker is an unemployed computer programmer who likes
to write sophisticated UNIX "Trojan horse" software. Cliff Cybercop is
a Berkeley Lab employee who was hired to write computer anti-hacker software
for UNIX.
Hunter begins writing a program based on his own idea on his 486 home
computer via a UNIX emulator. He produces about 500 lines of C code for
the first module and attempts to compile it. The compiler returns many
warnings, several errors and one disaster. He gets frustrated, saves his
program to disk and begins surfing Tymenet.
Meanwhile, Cliff decides to write a statistical program to help measure
the performance of his software. He writes it in FORTRAN on an old HP-1000
supermini-computer. He writes the basic operation algorithms first, such
as a t-test, ANOVA and chi-squared, etc., and then compiles, links and
runs those routines for testing. After pseudocode walk-throughs, extensive
acceptance testing, and stress testing he compiles the whole program without
errors, links it, and then runs it to produce output. He then prints out
the source code, puts his name on it and shows it to his boss.
Who has produced a copyrightable computer program, Hunter or Cliff?
Answer: They both have. As soon as either programmer fixed his program
to a tangible medium, it became a copyrightable work.
In Hunter's case he fixed a useless program to disk. This embodiment
is sufficiently permanent. It was fixed to a tangible medium and, with
the aid of a "machine," it can be perceived. It may not run, but he can
print out the source code and read it. For purposes of copyright protection,
it does not matter that the program will not compile. As long as it is
fixed and can be perceived it meets the requirements. Whether or not the
program is useful is not an issue in obtaining copyright.
In Cliff's case he has fixed the work to disk and paper. It may only
be perceivable via an old HP-1000, but it is copyrightable nonetheless.
Remember, even though he fixed the work to two different "tangible mediums"
or copies, there is only one copyright in the work.
*Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley
National Laboratory. Available as LBL Report No. 38995.
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