4 Things Software Companies Must Remember About Copyright Law!

Short answer: under copyright law software is protected automatically the moment you create it, the owner gets a bundle of exclusive rights, there are real exceptions like fair use, and registering early is what lets you collect statutory damages and attorney’s fees. Here are the four things I tell software clients to remember.

1. Copyright Law Protects Software Automatically.

Copyright protection is easy to get. It attaches automatically the moment an original work is fixed in a tangible form, which for a software company means your code is protected as your developers write it, with no filing required. The U.S. Copyright Office’s Circular 1, Copyright Basics is the plain-English primer if you want the official version. Adding the © notice is not technically required either, but it is cheap and it puts the world on notice that someone is claiming ownership. (Registration is a separate step with separate benefits, covered in point 4.)

2. There Are Essentially Four Rights.

If you own a copyright, Section 106 of the Copyright Act gives you the exclusive right to:

• Reproduce the work (make copies).
• Distribute it.
• Create derivative works from it.
• Display or perform it publicly.

The owner can stop anyone from doing any of these without permission, and doing one of them without a license is what copyright infringement is. This is the same bundle of rights your EULA or SaaS agreement licenses to your customers in a controlled way.

3. Lots of Exceptions.

Copyright is not absolute. There is a concept called fair use that lets someone use your copyrighted work without permission in certain situations, decided on a four-factor, case-by-case basis. Copyright also does not protect ideas, concepts, methods, or discoveries (only the expression of them), does not protect common property like calendars and charts, and does not last forever. That idea-versus-expression line is exactly why software vendors lean on contracts and trade secret law to cover what copyright leaves exposed.

4. Many Benefits to Registration.

Registering a copyright is inexpensive, and the benefits are big. Registration is a prerequisite to filing an infringement suit for a U.S. work, it can entitle you to recover attorney’s fees, and it unlocks statutory damages without having to prove actual harm. Timing matters. If you wait until after an infringement to register, you can lose access to statutory damages and fees for that infringement, so register early. (I lay out the full case in 4 Great Reasons to Register Your Software for Copyright Protection.)

Those are the four. Get them right and copyright becomes one of the cheapest, strongest tools in your kit. For how copyright fits with the other ways to protect a product, see Copyright Issues: SaaS Software. I hope this helps.

For the foundational frame on the four IP regimes that protect software (copyright, trademark, patent, and trade secret), see Intellectual Property Basics for Software Companies.

Resources:

• 4 Great Reasons to Register Your Software for Copyright Protection
• Copyright Issues: SaaS Software
• What Is Fair Use?
• Who Owns Your Company’s Marketing Content?

Disclaimer:

This post is for informational and educational purposes only, and is not legal advice. You should hire an attorney if you need legal advice, which should be provided only after review of all relevant facts and applicable law.