Copyrights for software developers

The Copyright Act of 1976 is a very broad and encompassing law. It covers all types of copyrightable intellectual property. We are going to focus on how this law applies to computer software development.

The Copyright Act of 1976 is a piece of enacted legislation that gives the creator of copyrightable intellectual property the exclusive right to control who can make copies or works derived from the original work. Computer code is copyrighted by the developer the moment it is written, and no copyright notice is required, but we recommend adding one as noted in the next section.

Securing copyright

Copyright notices in the form of ‚“Copyright [dates] by [author/owner] ‚½ throughout the code is highly recommended and strengthens the protection by warning others and assists should a copyright dispute arise. This notice identifies the copyright holder and shows the year of first publication. In addition, should infringement occur and the code contains the proper notice the court will not allow a defendant to claim they did not realize the work was protected. Listing 1 is an example of a copyright notice in code.

Listing 1. Copyright Notice

 PROCEDURE RemoveDuplicates  *============================================================================    * Method: RemoveDuplicates   * Purpose: Removes duplicate records from a selected file    * Author:  Lindsay-Adams Consulting    * Parameters: tcFile - The file name to remove duplicate records from   * tcTagName - The tag name of the index to use    * tcIndexExpr - The tag's index expression    * Returns:    * Created: 05.01.2003    * Modifications:    *============================================================================   LPARAMETERS tcFile, tcTagName, tcIndexExpr   LOCAL oRemoveDups   ** remove all duplicates    oRemoveDups = CREATEOBJ("cRemoveDups", tcFile, tcTagName, tcIndexExpr)    oRemoveDups.DoIt()   RELEASE oRemoveDups && release the object so no hanging objects   ENDPROC  

 

Length of protection

If the application is a work for hire, the duration of the copyright is 100 years from creation, otherwise copyright protection lasts for the duration of the developer ‚ s life and 50 years after the developer ‚ s death. If the software application was a joint effort of multiple developers who did not work for hire, the protection lasts for 50 years after the last surviving developer ‚ s death.

Transfer of copyright

Copyrights may be transferred from the owner to another party. A transfer of exclusive rights (see next section for definition) is not valid unless the transfer is in writing and signed by the original copyright holder.

Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.

Copyright transfers are made contractually. The parties involved in the transfer must sign a contract. The Copyright Office does not have any forms for such transfers. However, the Copyright Office does provide for the recordation of the transfer. Recording the transfer does provide some legal advantages and may be required to validate the transfer against third parties. If you want more information on the recordation process request Circular 12 ‚“ Recordation of Transfers and Other Documents ‚½ from the Copyright Office.

Exclusive rights

Earlier we defined the rights provided to the copyright holder of the code. We often see and are confused by the phrase ‚“Consultant retains all copyright and patent rights with respect to materials, and grants to Client a permanent, non-exclusive license to use and employ such materials within their business. ‚½ What this means is the client can use the materials in their business. That is it. The client has no right to alter it in any way and no right to make copies of the code. This right is usually granted, but non-exclusively. They have no right to sell, display, transfer, or lend the code to any other parties and no right to display the code in any public forum. Transfer of these exclusive rights must be made explicitly in writing.

How exclusive rights protect developers

‚“Developer ‚½ in this paragraph refers to both individual developers and software development companies.

Just like the strong infrastructure of a city takes years of planning and development (think ‚“Big Dig ‚½), strong software infrastructures take the same kind of planning and development. Once a strong foundation is designed, it becomes a very vital asset to developers ‚ continued success. If the developer assigns the client exclusive rights, the developer wouldn ‚ t be allowed to use any of the code in their strong foundation and they would have to start all over from scratch.

To start over from scratch for every new client is a very costly proposition in both time and dollars. Someone has to pay for this. Who should it be the developer or the client? We recommend the client pay for it if the client demands exclusive rights.

How exclusive rights protect developers ‚ clients

Clients spend a lot of money on software development so they mistakenly believe they should own all of the code. They don ‚ t and shouldn ‚ t, unless they make it very worthwhile for the developer to start over. However, the client does have proprietary sections in the application that give them the competitive edge. This is the code they own and maintain exclusive rights.

Fair Use

The Fair Use provision of the Copyright Act gives citizens and educators the right to copy and share material with certain limitations. However, what is fair and who defines it? Words like ‚“fair ‚½ can ‚ t be precisely defined. These terms are usually defined in the court system on a case-by-case basis using the following four factors.

1. The purpose and character of the use of the work . Is the use of the work for commercial or nonprofit educational purposes? The courts tend to favor noncommercial uses like book reviews.

2. 2. The nature of the copyrighted work . The courts are more likely to find Fair Use where the copied work is a factual work rather than a creative work .

3. 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The courts are more likely to find Fair Use where what is used is a very small amount of the Copyrighted work . However, it is not Fair Use if what is used is small in amount but substantial in importance.

4. 4. The effect of the use upon the potential market for or value of the copyrighted work . The courts are most likely to find Fair Use where the new work is not a substitute for the copyrighted work .

When you are in doubt, it is best to contact the copyright holder to ask for permission to use their work . You can obtain permission by contacting the copyright owner or the owner ‚ s authorized agent. This information is found in the copyright notice. Be prepared for any answer from the copyright owner. They may or may not permit its use. They may permit you to use it for free or ask a fee. If it is for educational or research purposes, copyright owners usually permit you to use it. The only request they may have is to be given credit in exchange for granting the use of their copyrighted material.

There may be times when it is difficult to reach the copyright owner. You can simplify this process by going to the Copyright Clearance Center (CCC), which can be found at www.copyright.com . The CCC acts as the agent on behalf of thousands of publishers and authors to grant permission.

It is not an infringement for the owner of a copy of a computer program to make a copy provided:

1. The new copy is essential to installing or using that program on a specific computer.

2. A new copy of the computer program is used for archival purposes only and all archival copies are destroyed when the original purchaser transfers rights to another party through a sale or no longer uses the computer program.

An example of Fair Use is inserting a section of the Visual FoxPro help file into a user group presentation for educational purposes. You can even include this section in hard-copy handouts, but you can ‚ t include the entire VFP Help file. However, before doing this we recommend you contact Microsoft to get their explicit permission.

Digital Millennium Copyright Act of 1998

On October 28, 1998, President Clinton signed a new bill that set new rules for downloading, sharing, or viewing copyrighted material on the Internet. This bill is the Digital Millennium Copyright Act (DMCA).

The DMCA imposes new safeguards for software, music, and written works on the Internet. It outlaws technologies that can crack copyright protection devices. It is now illegal to decrypt code, create, or sell any technology that could be used to break copyright protection devices, or commit acts of circumvention. Researchers, academics , and librarians are concerned over companies building ‚“toll gates ‚½ around their software limiting current ‚“fair use ‚½ rights that allow citizens and educators to copy and share material within certain limitations.

There are provisions in the law that permits cracking copyright protection devices to allow encryption research, for the purpose of product interoperability, and to test computer security systems.

The DCMA is intentionally written to be vague so courts and the copyright office could later fill in the details making this law something to watch over the next few years.

Display the copyright in the software and during installation

We discussed copyrights from the developer ‚ s point of view and putting copyright notices in the code. The clients never see this. How do we notify them?

The first time users see Copyright notification is during installation and setup. Most developers use an installation setup tool like InstallShield, Wise for Windows Installer, or InstaFox (see Chapter 4 ‚ ‚“Setup Tool Roundup ‚½ for a more complete list). These products have a place to include copyright and license information ( Figure 1 ).

Figure 1. Sample installation package indicating this program is protected by copyright law.

The next time users could see Copyright information is in a start-up splash screen when they start the application. We say ‚“could ‚½ because the developer may choose not to include a splash screen. Most professional looking applications include a splash screen with some Copyright and licensing information on it.

Figure 2. Sample Splash Screen with Licensing Information.

The last place users can see, and often expect, the Copyright and licensing information is in the ‚“About ‚½ screen. Notice the screen in Figure 3 looks similar to the splash screen in Figure 2 . However, the ‚“About ‚½ screen contains buttons that display additional forms containing information about the product. For instance, the detailed license agreement is displayed when the ‚“License ‚½ button is clicked.

Figure 3. Sample About Screen