Are Computer Programs and Videogames Copyrightable?

The question is whether you can copyright computer programs and videogames. The Copyright Act was amended to expressly include the right to register computer programs and videogames.

What is a computer program and how can you copyright it?

A computer program is a set of statements or instructions to be used in a computer to provide a result. See 17 U.S.C. § 101; Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 (2d. Cir. 1982). Copyright protection extends to the copyrightable expressions embodied in the computer program. Computer programs are classified as literary works for the purposes of copyright. See Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1234 (3d Cir. 1986). Also, copyright laws do not protect the functional aspects of a computer program (e.g., algorithms, formatting, functions, logic, system designs).

The copyright owner should submit the application, pay the filing fees, and deposit a copy of the work. The registration steps are as follows: include information about the work’s title, year the work was complete, date and nation of first publication, author’s name, whether the work was a work made for hire, claimant’s name and address, description of the work, and the certifying individual’s name.

If there is a different version of the computer program, then it probably constitutes a separate work which requires the submission of a separate application. It must be noted that if the computer program is unpublished, then it’s best to register multiple versions of the same program by submitting them as an “unpublished collection.” In most circumstances, a registration does not protect earlier versions of the same computer program. Also, the registration of a specific version of the computer program does not protect prior published source code, prior registered source code, source code that exists in the public domain, or copyrightable source code that’s owned by a third party. However, there is an exception to this rule – i.e., when the registration covers the new and old source code – if: (a) the old source code was never registered or published; and (b) the claimant owns the copyright to the new and old source code.

The copyright owner must submit the source code for the version he/she is seeking to register. The source code may differ as there are several types – e.g., C++, PERL, Java – which require some kind of conversion into object code so the computer can understand it. The source code may be uploaded to the Copyright Office’s electronic registration system or mailing a paper copy. The copyright owner can send the entire source code or an isolated portion depending on the situation (e.g., if the code yields trade secrets). The copyright owner should not send any kind of HTML because it is not considered as a computer program. Yet, if the copyright owner is seeking to register the HTML as a literary work created by a human being and not a website design program, then he/she may submit a complete copy of the entire code.

What is the videogame copyright registration process?

The copyright owner of a videogame can register the audiovisual material and computer program with one application if he/she owns them. The copyright owner has the option to mail a complete copy of the videogame on a CD-ROM along with the instruction manual. However, if the videogame is not stored on a CD-ROM, then the copyright owner should provide identifying material (e.g., photograph) that yields a representative portion of the audiovisual elements. This information may be uploaded to the Copyright Office’s electronic registration system or mailing a paper copy. So, for published works, the copyright owner should submit a complete copy of the entire CD-ROM package. Also, for unpublished works, one complete copy of the entire CD-ROM package that includes identifying material.

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