When Do You Need a Copyright Notice on Software (And Where Do You Place It)?

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A copyright notice should be used for all published software. Although not mandatory, using notices costs nothing, and may help to deter infringements becasue the notice lets users know that the work is protected by copyright and may not be copied without the owner's permission. It can also help you win more damages (money) if you successfully sue someone for copying your software.

When Is Software Published?

A work is published for copyright purposes when copies are sold, licensed, rented, lent, given away or otherwise distributed to the public. Selling copies to the public through retail outlets or by mail order, publishing code in a magazine, selling a program at a widely attended computer show and allowing a number of educational institutions to use your program without restriction are all examples of publication.

However, publication occurs only when software is made available to the general public on an unrestricted basis. Distributing copies of software to a restricted group of users does not constitute publication. For example, sending copies to a few friends or beta testers would not constitute a publication.)

In addition, software licensed to a select group of end users who sign license agreements imposing confidentiality requirements probably is not published for notice purposes

Finally, a publication does not occur for copyright notice purposes when software is made available only for use on a time-shared computer system or simply displayed on a computer terminal (for example, in an online library catalog). But even in these situations, it is wise to use a copyright notice.

It's not entirely clear whether making a program available online constitutes publication. However, you should assume it does. Accordingly, all such programs should carry a proper copyright notice to achieve maximum copyright protection.

If you're not sure whether your software has been published for copyright notice purposes, the best course is to assume that it has been published and include a copyright notice.

Form of Notice

There are strict technical requirements as to what a copyright notice must contain if it is to serve its purpose of preventing an innocent infringer defense. A valid copyright notice contains three elements:

  • the copyright symbol ©, or the words "Copyright" or "Copr.,"
  • the year of publication, and
  • the name of the copyright owner.

It is not required that these elements appear in any particular order in the notice, but most notices are written in the order set forth above.

Where to Place Notice

Every component of a published software package should contain a copyright notice. This includes:

  • the package or box the software comes in, if any
  • the manual and other written documentation
  • the computer disks or other media containing the software (if any), and
  • the appropriate computer screens.

Packaging

Most published software that is not distributed online is sold in some sort of box or other package. A copyright notice should appear somewhere on the box. It is often placed on the back of the box, but you can also place it on the front or sides. The notice will apply to your cover art and graphics as well as to the software and other materials inside the box or package.

DVDs

A copyright notice should also be printed on a label permanently affixed to DVDs or other magnetic media containing the software.

Computer Code

If you license or otherwise distribute your source code, at a minimum include a copyright notice on the first and last page. Even better, include a notice on every page.

Also, place a copyright notice on the first page and liberally sprinkle notices throughout the remainder of the code. This way, anyone who prints out the code will see that you claim copyright in it.

In addition, use a confidentiality legend in conjunction with your copyright notice. 

Computer Screens

According to Copyright Office regulations, providing a copyright notice on the box or disk containing published software is sufficient. But it shouldn't be sufficient for you. Remember, you want to make sure that users do really see your notice. It should appear somewhere on the computer screen when the software is used. This can be done in one or more of the following ways:

  • by printing the notice in or near the title of the program or at the end of the program
  • displaying the notice when the program is first activated (on the opening screen or in an about or credit box), or
  • displaying the notice continuously while the program is being used (for example, in a status bar).

A good rule is to display it on the screen at the beginning and end of a program, as well as every time the program title is displayed. Also include a notice in any "read me" files.

by: , J.D.

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