Acquiring Copyrights and Patents

Copyright is said to subsist in an original work of authorship. An author need not undertake any formal act ”other than the act of original creation and fixation ”to obtain a copyright. This applies to software as well. Any original software that is written down is automatically protected by copyright.

Formalities still may be useful. You should mark an original work with a copyright notice in the form:

Copyright <year> <author>

Such a notice is no longer required to obtain a copyright, but it provides added protection. If you mark your software with a prominent copyright notice, a defendant can't argue that he was unaware who owned the copyright on the work. Registering a copyright isn't strictly necessary to have a copyright, but registration is required to initiate litigation to enforce the copyright. Furthermore, early registration provides added protection in the form of statutory damages and attorneys ' fees if litigation becomes necessary to enforce the copyright. If it becomes important to do so, registration involves filling out a short form and paying a small fee (currently $30) to the Library of Congress (similar processes apply in other countries ). But as a matter of law and international treaty, neither a copyright notice nor registration is required to have a copyright. Copyright merely subsists.

For the most part, because of international treaties , a copyright in one country is a copyright in all countries.

Obtaining patents is far more time-consuming and expensive. An application must be submitted to the patent office of each country (or group of countries) where patent protection is sought, describing with specificity the invention being claimed. Trained patent examiners review the patent application and the prior art to determine whether the claimed invention meets patentability standards. If it passes tests of novelty and unobviousness ”and other legal tests relating to patentability ”a patent will be issued. Even then, a patent certificate from the government provides only a presumption of validity, a presumption that can be challenged in court .

Just as with copyright notices, there are advantages to marking products with patent notices identifying specific patents. Even the phrase "Patent Pending" can be useful to alert others that patent protection is being sought. Patent notices are not a mandatory prerequisite to patent enforcement, but using them may allow a patent owner to obtain damages for infringement starting prior to the date of filing of an infringement lawsuit.

Anyone who owns a copyright or patent may license the intellectual property rights to others.