Computer Law Terminology 101

Before we get too far let ‚ s define some of the terms developers need to be familiar with. We all know how confusing legalese can be. We are not attempting to give a full-blown definition of all the terms here. That is outside the scope of this book. We are providing very simplified definitions to raise your awareness of the most confusing terms and how they apply in the context of computer software development. If you want more information, please check out some of the links at the end of this chapter.

Intellectual property

Intellectual property refers to creations from the human mind put into a tangible format. There are two categories of intellectual property:

• Industrial property ‚ inventions (patents), trademarks, industrial designs, and geographic indications of source

• Copyrightable property ‚ literary works ( novels , poems, and plays), musical works, artistic works (drawings, paintings, photographs, sculptures)

Computer code falls under the category of literary works and is copyrightable intellectual property. There may be some instances when computer applications can be combined to create a patentable invention.

Note ‚  

The details of patentable computer applications fall outside the scope of this book. For more information, go to www.complaw.com .

Copyright

A copyright is a form of legal protection provided to authors of ‚“original works of authorship ‚½ including literary, dramatic, musical, artistic, and other intellectual works, both published and unpublished. It gives the creator of copyrightable intellectual property the exclusive right to control who can make copies or works derived from the original work.

Copyrights protect the form of expression rather than the subject matter. For example, a description of a widget could be copyrighted , but this would only prevent others from copying the description. It does not prevent others from writing a description of their own or making and using widgets.

Creative/Original work

A creative work is anything written, recorded, photographed, sculpted, or drawn. The law requires it exist in some tangible form. It can ‚ t just be an idea floating around in your head or something you told someone (unless the conversation was recorded). For instance, just because you have a great idea for a new algorithm, it can ‚ t be copyrighted until the algorithm or the actual code for the algorithm is written and stored on disk or printed.

Derivative work

A derivative work includes any modification made to original code. As developers we are constantly creating derivative works of our own code. This becomes an issue when code is given to a client or another developer. If permission is granted to create derivative works, the client or other developer then holds the copyright to any derivative works created. However, it may be negotiated with the client or other developer that the original developer retains the copyrights of any derivative work created based on the developer ‚ s original code.

Work for hire

Section 101 of the Copyright Act defines a work for hire as a work prepared by an employee within the scope of his or her employment. If you are an employee of a company, your employer is the copyright holder of any code you write. If you are a consultant and signed a contract with a ‚“Work for Hire ‚½ clause in it, the client is now the copyright holder of any code you write for them.

Exclusive rights

Rights provided to the copyright holder of the code.

1. To reproduce the copyrighted code on paper or disk formats

2. To prepare derivative works based on the copyrighted work

3. To distribute copies of the copyrighted work to the public by sale or transfer of ownership, or by rental, lease, or lending

4. To display the copyrighted work in public