If you are a software coder or manufacturer, your intellectual property is critical to your business. After all, your primary product is your original code. If that code is used or misappropriated by a competitor, your business will suffer. One relatively easy strategy for preventing this situation is using copyright notices.
A copyright notice should be placed onto all published software. Although not mandatory, using such notices costs nothing and may help to deter infringements, because the notice advises users that the work is protected by copyright and cannot be copied without your permission. Notices can also help you win greater money damages if you successfully sue someone for copying your software.
A work is “published” for copyright purposes when copies are sold, licensed, rented, lent, 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. The same is true if you give your software to employees for testing.
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).
Although the law surrounding online software and apps continues to develop, making your software broadly available through these channels generally qualifies as publication. Accordingly, all such programs should carry a proper copyright notice in order to achieve maximum copyright protection.
If you are 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. There is generally little harm in doing so.
There are certain technical requirements as to what a copyright notice must contain if it is to serve its purpose of preventing an innocent infringer defense. The U.S. Copyright Office has published a helpful guide to understanding the permissible text. A valid copyright notice contains three elements:
For example, the copyright notice might read: "©, 2017, Jane Doe." 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.
Every component of a published software package should contain a copyright notice. This includes:
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.
Although fewer and fewer companies use CDs and DVDs to sell software (preferring direct downloads), these remain important sales mechanisms. A copyright notice should also be printed on a label permanently affixed to CDs, DVDs, or other media containing the software.
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.
According to U.S. Copyright Office regulations, providing a copyright notice on the box or disk containing published software is sufficient. But you can do much more, particularly if your software is not sold in a box. Remember, you want to make sure that users do really see your notice.
It should appear somewhere on the computer screen (or phone screen) when the software is used. This can be done in one or more of the following ways, including by:
A good rule of thumb is to display the notice 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.