1006.1 (A) Hypertext Markup Language (HTML)
An applicant may register HTML as a literary work if it was created by a human being (rather than a website design program) and if it contains a sufficient amount of creative expression. The claim may include the HTML underlying an entire website or it may be limited to specific webpages. In all cases, the claimant must be the author of the HTML or must own all of the exclusive rights in the HTML. If the HTML contains an appreciable amount of previously published, previously registered, or public domain material, that material should be excluded from the claim. For a definition and discussion of the differences between an applicant, author, and claimant, see Chapter 400.
The Office will not register HTML as a computer program, because HTML does not constitute source code. HTML is a markup language that merely formats the text and files on a webpage in much the same way that the codes in a word processing program format the characters and spaces in a document.
Unlike computer programs that are hand-coded by programmers using computer programming languages, HTML is frequently generated by website design software that provides templates or WYSIWYG (“What You See Is What You Get”) functionality. If the website design software automatically creates the HTML, the website designer is not considered the author of the resulting markup language. By analogy, when an author creates a document using a word processing program, the author may insert text, spaces, and paragraphs, choose the font and the size of the letters, and select the color of these elements, but those decisions do not constitute copyrightable authorship. In such cases, the author of the document cannot assert a claim in the codes generated by the word processing program, because those codes were created by the program itself. The same is true for HTML that is automatically generated by website design software.
The HTML for a website typically contains any text that is viewable on the site, because the HTML formats, colors, sizes, and lays out the text on each webpage. If an applicant intends to register the text within a website, the applicant should submit the text as it is rendered on the webpage; there is no reason to submit the HTML.
To register a claim in HTML the applicant must submit copy(ies) of the entire work. The applicant may not rely on the regulations governing computer programs, which allow applicants to submit only a portion of the source code.
A registration for HTML and/or accompanying text will extend to the original text that is embedded in the HTML (i.e., the series of letters and numbers, interspersed with file names and/or text). However, it will not extend to the formatting and layout of text or digital files on a webpage that may be dictated by the HTML or style sheets. A claim in a computer program may cover the screen displays and other content generated by the program, but a claim in HTML does not extend to the screen displays or any content of the files referred to in the HTML.
For information concerning the practices and procedures for registering computer programs see Chapter 700, Section 721.