As software designers or developers, you have the important task of ensuring that a program works the way it is supposed to while being efficient, user-friendly, and unique. After all the creativity that is poured into making a program work just right, it’s fair to say that a well-designed software program is a work of art.
From a legal perspective, a software program is a complex work that includes both functional and artistic elements. This means that software programs may be protected by different types of intellectual property (IP) law. IP law includes copyright, trademark, trade secret, or patent law. Some of these areas of IP may overlap depending on the elements of a particular software program. This can be confusing for those who are not experts in IP.
This article is here to provide you, as a software designer, with a basic overview of one type of IP law, copyright law, as it relates to your software design projects.
Copyright law is a type of intellectual property law that protects creative works, which can include things like plays, movies, manuscripts, paintings, drawings, songs, letters, and many other things. In the United States, the Constitution provides that copyright law protects “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Most other countries that are members of the World Intellectual Property Organization (WIPO) have similar definitions.
Copyright law does not protect ideas, procedures, methods of operations, or mathematical concepts (though other types of IP may protect them under certain circumstances). In other words, copyright law is about protecting a particular expression of an idea, not functional elements of a given work.
Copyright law can apply to all kinds of technological works that are used with computers, tablets, smartphones, or video game systems. This includes apps, computer programs, databases, spreadsheets, screen displays, and even virtual reality environments. Copyright also applies to works that are used or distributed on the internet like websites, blogs, and other online content.
As any designer knows, software design is an integral part of the process of creating innovative software solutions. The best software programs are easy to use, beautifully designed, or solve a problem no one else has solved. This work necessarily involves creativity and originality. As a software designer, you are a problem solver, but you could also be called an author or artist. There are many aspects of software that involve creative expressions, such as elements of the user interface, storyboards created to improve the “flow” of the software, or even the source code itself.
Software programs consist of both “literal” and “non-literal” elements. From a legal standpoint, a program’s literal elements consist of source code and object code. Courts have defined “non-literal” elements of a computer program to include “structure, sequence, organization” (a specific language used in a 1986 U.S. court case) as well as screen displays, menu structures, and user interfaces. Both literal and non-literal elements may be protectable by copyright.
How Do You Obtain A Copyright?
Copyright is generally considered to be inherent in the “fixed form” of the work regardless of whether the work is published or unpublished. To be in a “fixed form” simply means that the expression has been recorded in some kind of tangible medium.
For an artist, the expression may be in “fixed form” when he has moved past thinking of what he is going to paint and has actually started putting paint on canvas. For a musician, it might be when she writes down the tune in her mind or makes a recording. For a software designer, it might be when you sketch out a storyboard, create a new character, or write lines of unique code.
Worldwide, copyright is generally considered “inherent” in the work, meaning that the copyright exists as soon as the work is written down or otherwise recorded as explained above. In countries that are signatories to the Berne Convention – all 172 of them – no formal registration is required to create copyright protection, so typically registration isn’t necessary for every work. However, at least in the United States, copyright registration is generally required before any damages would be awarded in an infringement action.
Fortunately, copyright registration is generally a much simpler and less time-consuming matter than obtaining other types of IP rights such as patents or even trademarks and does not necessarily require the assistance of an attorney. In the United States, you can seek copyright registration online with the U.S. Copyright Office. Generally, to register digital content, you will determine authorship and then choose to submit the work as a literary work, work of the visual arts, or work of the performing arts depending on which is most appropriate for the program or element of the program you are trying to protect. For example, source code would probably be submitted as a literary work, while graphics might be submitted as works of the visual arts.
In general, copyright laws provide the owner with exclusive rights over the reproduction, preparation of derivative works, distribution, and public performance and display of the copyrighted works. Some other specific rights may include:
- the right to translate;
- the right to make adaptations and arrangements of the work;
- the right to perform in public dramatic, dramatico-musical and musical works;
- the right to recite literary works in public;
- the right to communicate to the public the performance of such works;
- the right to broadcast;
- the right to make reproductions; and
- the right to use the work as a basis for an audiovisual work.
Note: You can review a list of exclusive rights provided by the U.S. statute here.
Obviously, these rights are critical for the distribution and transformation of software programs from one format to another. For example, if a software designer creates a popular computer game for PC, it would be necessary to have the right to create a derivative work in order to be able to create an app version of the same game for the iPhone.
See more at: https://www.smashingmagazine.com/2017/12/designers-copyright-law-essentials/