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1509.1 (F) (4) (B) Computer Programs That Contain Trade Secret Material

 

1509.1 (F) (4) (B) Computer Programs That Contain Trade Secret Material

 

If the source code for the computer program contains trade secret material, the applicant should submit a portion of the code using one of the following options:

 

• The applicant may submit the first ten pages and last ten pages of source code, provided that none of the code is blocked out;

 

• The applicant may submit the first twenty-five pages and last twenty-five pages of source code with the portions of the code that contain trade secret material blocked out, provided that the blocked out portions are proportionately less than the remaining material and provided that the unblocked portions contain an appreciable amount of original authorship;

 

• The applicant may submit the first twenty-five pages and last twenty-five pages of object code for the program together with ten or more consecutive pages of source code, provided that none of the source code is blocked out; or

 

• If the source code for the entire program is less than fifty pages, the applicant may submit the entire code with the portions of the code that contain trade secret material blocked out, provided that the blocked out portions are proportionately less than the remaining material and provided that the unblocked portions contain an appreciable amount of original authorship.

 

See 37 C.F.R. § 202.20 (C) (2)(vii) (A) (2).

 

In all cases, the applicant should use the following guidelines in preparing the selection of source code:

 

• If the source code does not have a precise beginning, middle, or end, the applicant may submit an appropriate number of pages (using one of the options described above).

 

• The applicant should submit the portion of the source code that contains the copyright notice (if any) for that version.

 

• The applicant should notify the Office that the source code contains trade secret material. When completing an online application, this information should be provided in the Note to Copyright Office field. When completing a paper application on Form TX, this information should be provided in a cover letter.

 

Section 410 (A) directs the Register of Copyrights to examine claims to copyright and to determine whether the material deposited “constitutes copyrightable subject matter.” 17 U.S.C. § 410 (A). The U.S. Copyright Office considers source code to be the best representation of the copyrightable literary authorship in a computer program for examining purposes. By contrast, object code cannot be examined for copyrightable authorship, because it is written in a machine language that is unintelligible to human beings.

 

As mentioned above, an applicant may submit the first twenty-five pages and last twenty-five pages of object code, together with ten or more consecutive pages of source code. In such cases, the applicant must state in writing that the object code contains copyrightable authorship, and the applicant must request registration under the Rule of Doubt. When completing the online application, this statement should be provided in the Note to Copyright Office field. When completing a paper application, this statement should be provided in a cover letter. If the object code contains the copyright notice for the program, the applicant should submit the portion of the code where the notice appears. The notice should be underlined or highlighted, and the content of that notice should be decoded and presented in words and numbers that are comprehensible to the Registration Program.

 

If the applicant submits a deposit containing object code, the registration specialist will examine the object code and will determine whether the other formal and legal requirements for registration have been satisfied. However, the specialist will not make any determination concerning the copyrightability of the object code. Instead, the specialist will accept the applicant’s assertion that the object code contains copyrightable authorship and will register the program under the Rule of Doubt. This limitation will be reflected on the certificate of registration and in the online public record with an annotation, such as: “Regarding deposit: Registration made under Rule of Doubt.” See 37 C.F.R. § 202.20 (C) (2)(vii) (B).

 

The annotation indicates that the Office did not conduct a complete examination for copyrightable authorship. Therefore, the certificate may not be entitled to a legal presumption concerning the validity of the copyright. If there is a legal dispute involving the program, the courts can evaluate the copyrightability of the object code.

 

If a court determines that an applicant submitted redacted source code or object code that does not contain trade secret material, the Office may communicate with the applicant “to secure the required . . . deposit material or to clarify the information previously given on the application.” 37 C.F.R. § 201.7 (C) (4). If the Office does not receive a response within thirty days, or if the response does not resolve the substantive defect, it may cancel the registration for failure to comply with the relevant deposit requirements. See id.