Compendium of U.S. Copyright Practices, 3rd Edition

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721.7 Copyrightable Authorship in a Computer Program

721.7 Copyrightable Authorship in a Computer Program

A computer program may be registered with the U.S. Copyright Office if it contains a sufficient amount of original authorship in the form of statements or instructions to a computer.

Section 102 (B) of the Copyright Act “make[s] clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.” H.R. REP. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. at 5670; S.

REP. NO. 94-473, at 54 (1975).

As a general rule, the Office does not distinguish between executable code and nonexecuting comments or data that may appear in the source code for a computer program. Either element may support a claim to copyright if the program contains a sufficient amount of original statements or instructions, and both elements may be registered with the same application. See Registration of Claims to Copyright Deposit Requirements for Computer Programs Containing Trade Secrets and for Computer Screen Displays, 54 Fed. Reg. 13,173, 13,174 n.2 (Mar. 31, 1989); see also Registration Decision: Registration and Deposit of Computer Screen Displays, 53 Fed. Reg. 21,817, 21,819 (June 10, 1988). To register a claim in the executable code, the applicant should check the box marked “computer program” in the Author Created field. To register a claim in nonexecuting comments, the applicant may check the box marked “computer program,” or may also check this box and state “nonexecuting comments” in the field marked “Other.” In both cases, the applicant should avoid using the term “text,” either alone or in combination with the term “computer program.” For guidance in completing this portion of the application, see Section 721.9 (F).

The copyright in a computer program does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in the program. 17 U.S.C. § 102 (B). As such, the Office will not register the functional aspects of a computer program, such as the program’s algorithm, formatting, functions, logic, system design, or the like. Likewise, the Office will communicate with the applicant and may refuse registration if the applicant asserts a claim in uncopyrightable elements that may be generated by a computer program, such as menu screens, layout and format, or the like.

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