Many computer programmers are aware that their work is protected by intellectual property laws, but few probably know just what that term encompasses. Fewer still know the basic criteria under which computer software can qualify for protection under the four major kinds of "intellectual property:" copyrights, trademarks, patents and trade secrets.
The purpose of this article is to provide an overview of two legal sources of protection for computer programs-copyright and trademark law. The next article will discuss patent and trade secrets.
Copyrights
Copyright law protects any original work of authorship "fixed in [a] tangible medium of expression from which [it] can be perceived, reproduced or otherwise communicated . . . " 17 U.S.C. § 106. Copyright law protects expression, not ideas. So, for example, the text of the play The Crucible is protected by copyright, but the idea of a play about the Salem witch trials is not. Copyright extends to an extremely broad range of expressive works-books, songs, sound recordings, video recordings and, of course, computer programs.
Nearly all aspects of computer programs-source code, object code, program structure and audio and visual displays-can enjoy copyright protection under the right circumstances. The crucial question for copyright protection often is whether the aspect of the program is a form of "original expression" or whether it is merely an idea or process. If it's the latter, it doesn't get protection. The application of this test can be very complicated.
Copyright protection lasts a long time: the life of the author plus 70 years. For "works for hire," usually meaning works made for and owned by an employer, protection lasts 120 years from creation or 95 years from publication, whichever is shorter.
Copyright protection also is easy to obtain. In fact, newly created programs and other works enjoy copyright protection from the moment they are "fixed in a tangible medium," meaning put on paper, created on a word processor or fixed in any other way. No registration with the government's Copyright Office is needed, nor is putting a copyright notice on the program. Both of these are desirable (for reasons lack of space prevents me from getting into), but they are not needed to obtain ownership of the copyright.
Ownership of a copyright gives one the exclusive right to make copies of the work. In the context of computer programs, this can be a very powerful right because once the program is in electronic form, virtually any use or transmission of it may involve some element of "copying." That doesn't mean you can't use that new version of QUAKE that you just purchased (or licensed, actually), but it does mean that any transmission of the game to another person's computer, even if very fleeting, will likely involve "copying."
In short, copyright law is a powerful source of protection for computer programs. For more information, see the Copyright Office's Web site.
Trademark Law
Trademarks are completely different from copyrights. The purpose of a copyright is to protect creators of expressive, creative works from copying by others. The purpose of trademark law, on the other hand, is to prevent confusion among the consuming public by granting exclusive rights in the use of certain names or "marks" that designate the source of distinct products and services.
Trademark law does not protect computer programs per se, but it can protect the names or marks under which programs are sold. The key to getting protection is showing that the mark or name identifies the source of the specific product or service. If one can do that, then one legally can prevent others from using the same or a similar name or mark in a way that is likely to cause confusion in the minds of the consumer.
For example, "Acrobat" is a registered trademark for use in connection with the well-known computer program. It's very likely that anyone who tried to sell computer software under that name would end up getting slapped with a lawsuit, or at least a cease-and-desist letter. But even federal registration of the term won't necessarily stop somebody from using the name to sell a completely different product, such as Acrobat gymnastics equipment (I'm making that up). In a case like that, Adobe might have trouble showing that consumers would really be confused by the two uses of the name.
Trademarks are a little more difficult to obtain than copyrights. For one thing, protection doesn't start until the name or mark is actually in use and is associated with a specific service or product. And federal registration of a trademark takes longer than registration of a copyright. Registration requires submitting samples of the mark together with an application containing vital information about the mark to the U.S. Patent and Trademark Office, or to the Secretary of State if you are applying for state registration. Federal registration typically takes half a year or more. State registration, on the other hand, is cheaper and much faster, but less useful at protecting against infringement on a national level.
Trademarks can last forever. As long as the owner carefully uses the mark so consumers continue to recognize it as identifying the source of the product or service, the mark will endure. Registration also can last forever, so long as the appropriate fees are paid from time to time.
For more information about trademarks, see the U.S. Patent and Trademark Office's Web site.
