Section 102(a) of the Copyright Act provides that copyright protection extends to “original works of authorship” that are “fixed in a tangible medium of expression . . . .” “Works of authorship” include “literary works.” A computer program is a “literary work,” as defined in the Copyright Act, and it is generally “fixed in a tangible medium of expression” when it is stored in a computer’s memory. Accordingly, upon storing a computer program in a computer’s memory, copyright protection will generally attach to the computer program so long as it is original.
Under section 102(b) of the Copyright Act, however, copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . .” Problematically, computer programs embody a method of operation. Distinguishing between the uncopyrightable method embodied in a computer program and the copyrightable creative expression of that method can be challenging and imperative, particularly if the method can only be expressed in very few ways. Indeed, under the doctrine of merger, the expression of a method “merges” with the method itself when the method can only be expressed in one or a very limited number of ways. Once merged with the method, the expression becomes uncopyrightable. In this regard, copyright protection for a computer program can be limited. Namely, a copyrightable computer program can be redeveloped by a competitor using a different expression for the method embodied therein, and a computer program having a method incapable of being expressed in more than one way does not qualify for copyright protection. When this issue arises, other forms of intellectual property protection may be more suitable for protecting the computer program, such as a patent or trade secret protection.
Also, note that although copyright protection may attach to a computer program, copyright registration is typically a prerequisite to commencing a copyright infringement lawsuit in federal court. In other words, before the copyright owner can bring a copyright infringement lawsuit against an alleged infringer in a federal court, the copyright owner usually must register the copyright with the Copyright Office. In addition, statutory damages and attorneys fees will typically not be recoverable if the copyright infringed is not registered within the time period set forth in section 412 of the Copyright Act.
This information is provided by Bailey & Company, Attorneys & Counselors, P.A. (“Bailey & Company”), solely for informational purposes. This information does not form, nor should it be construed to form, an attorney-client relationship, or any other fiduciary relationship, with Bailey & Company or any attorney, agent, or employee of Bailey & Company. For additional information about the topic of this article, contact Drew Bailey.