Compendium of US Copyright Office Practices, II (1984)/300

by US Copyright Office

Chapter 300

COPYRIGHTABLE MATTER:
NONDRAMATIC LITERARY WORKS

Outline of Topics

301⁠Applicability of this chapter.
302⁠Definition: literary works.
303⁠Definition: nondramatic literary works.
304⁠Copyrightable literary expression.
305⁠Noncopyrightable material.
305.01⁠Names, titles, slogans, and other shortphrases.
305.02⁠Ideas, methods, or systems.
305.03⁠Measuring and computing devices.
305.04⁠Works consisting entirely of information that is common property.
305.05⁠Blank forms.
305.06⁠Format or layout.
305.07⁠Book design.
305.08⁠Limits on copyrightability.
305.09⁠Use of protected characters, names, slogans, symbols, and seals.
306⁠Derivative works.
206.1⁠Extent of claim.
306.2⁠Types of nondramatic literary derivative works.
307⁠Compilations.
307.01⁠Registrability.
307.02⁠Telephone books, directories, price lists, and the like.
307.03⁠Coordination and arrangement.

308⁠Collective works.
308.01⁠In general.
308.02⁠Collective works made for hire.
308.03⁠Registration of collective works.
308.04⁠Periodicals other than daily newspapers.
308.05⁠Daily newspapers: various editions.
309⁠Certain periodicals not collective works.
310⁠Contributions to collective works.
310.01⁠All rights to an independent contribution owned by claimant of collective work.
311⁠Unit registration for contributions to periodi­cals.
312⁠Book jackets.
[Number 313 is reserved].
314⁠Tests and answer material for tests.
315⁠Secure tests.
316⁠Copyright ownership as distinct from ownership of material object.
316.01⁠Letters and diaries.
317⁠Interviews.
318⁠Facts, historical data, and "news."
318.01⁠Research.
319⁠Author deceased before date of creation of work.

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320⁠Machine-readable works.

320.01⁠Literary works embodied in machine-readable form.

321⁠Computer programs.

321.01⁠Source code.

321.02⁠Object code.

321.03⁠Relationship between source code and object code.

322⁠Copyrightable subject matter. 323⁠Derivative computer programs.

323.01⁠Registrability of a derivative computer program.

324⁠Deposit for registration: identifying material.

324.01⁠Title on identifying material.

324.02⁠Notice on identifying material.

324.03⁠Source code as best deposit.

324.04⁠Source code as best deposit.

324.05⁠Special relief.

324.06⁠Specific deposit examples.

325⁠Completing the application form.

325.01⁠Asserting a claim in a derivative computer program.

325.02⁠Nature of authorship and extent of claim.

326⁠Glossary of terms. 327⁠Instructional booklets, flowcharts, and the like. 328⁠Automated data bases.

Chapter 300

COPYRIGHTABLE MATTER:
NONDRAMATIC LITERARY WORKS

301

Applicability of this chapter. This chapter concerns itself solely with nondramatic literary works.

302

Definition: literary works. Literary works are defined as works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embod­ied. 17 U.S.C. 101.

303

Definition: nondramatic literary works. A nondramatic literary work is one that explains, describes, or narrates a particular idea, theme, or subject: it does not usually employ dialog or action to represent or give directions for rep­resenting all or a substantial portion of a story as actually occurring.

304

Copyrightable literary expression. To be regis­trable, a nondramatic literary work must contain at least a certain minimum amount of literary expression owing its origin to the author. See Chapter 200: COPYRIGHTABLE MATTER - IN GENERAL.

305

Noncopyrightable material. The following are not copyr1ghtable and therefore cannot serve as a basis for registration.

305.01

Names, titles, slogans, and other short phrases. Names, titles, slogans, and other short phrases or expressions are not copy­ rightable, even if such expressions are novel, distinctive, or lend themselves to a play on words. Similarly, a mere listing of ingredients or contents is not copyright­able. See 37 C.F.R. 202.1(a).

305.02

Ideas, methods, or systems. Ideas, methods, systems, or the like are not copyrightable, regardless of the form in which they may be described, explained, or embodied in a work. In no case does copyright protection for an original work of authorship 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 such work. See 17 U.S.C. 102(b).

305.03

Measuring and computing devices. Devices and similar articles designed for computing and measuring are not copyrightable. Common examples of such devices are slide rules, wheel dials, and nomograms that contain insufficient original literary or pictorial expression.

305.04

Works consisting entirely of information that is common property. Examples of these kinds of works include standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources. However, such a work may contain sufficient copyrightable material, such as instructional text, to warrant a registration, but such a registra­tion would not extend protection to the uncopyrightable material. See 37 C.F.R. 202.1(d).

305.05

Blank forms. Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms, and the like, which are designed for recording informa­tion, and do not in themselves convey infor­mation, are not copyrightable. See 37 C.F.R. 202.1(c). However, the Copyright Office will register a work containing a certain minimum amount of original, creative expression, regardless of whether the work contains uncopyrightable elements designed for simple recordation of information. Thus, textual works, such as contracts, insurance policies, and the like, and bank checks containing pictorial authorship, may be registrable if they contain a sufficient amount of original literary or artistic expression.

305.06

Format or layout. Copyright does not pro­tect either the general format or layout, or the idea expressed by either of these.

305.07

Book design. Book designs may include choice of style and size of typeface, lead­ing (space between lines of type), placement of folio (page numbers), arrangement of type on pages, and placement, spacing, and juxta­position of text and illustrative matter—in short, all the physical and visual at­ tributes of a book. After having issued a notice of proposed rulemaking and having held a hearing, the Copyright Office decided not to change its long-standing practice of not registering claims to copyright in book design. The Office concluded that "the arrangement, spacing, or juxtaposition of text matter which is involved in book design falls within the realm of uncopyrightable ideas or concepts." See 46 Fed. Reg. 30651 (1981).

305.08

Limits on copyrightability. Certain catego­ries of nondramatic literary works are not copyrightable, even though they may contain a substantial amount of textual material. They include the following:

305.08(a)

Works in the public domain. Works in the public domain in the United states cannot be the subject of U.s. copyright protection. See section 203 of Chapter 200: COPYRIGHTABLE MATTER - IN GENERAL.

305.08(b)

Nondramatic literary works unlawfully employing other works under copyright protection. Nondramatic literary works that unlawfully employ another work under copyright protection are not them­selves subject to copyright protection if they are inseparably intertwined with the preexisting work. See 17 U.S.C. 103(a) and H.R. Rep. 94-1476, 94th Cong., 2d Sess. 57-8 (1976). For exam­ple, an unlawful English-language translation that cannot be separated from the original French-language version would not be registrable. However, the Copy­right Office does not generally investi­gate the copyright status of preexisting material or whether it has been used lawfully. Where a work unlawfully em­ploys preexisting copyrighted material that is separate from the new material, the new work is registrable.

305.08(c)

Works of the U.S. Government. Works of the U.S. Government are works prepared by an officer or employee of the U.S. Government as part of that person's official duties. Ordinarily, such works are in the public domain in the United States. See section 206 of Chapter 200: COPYRIGHTABLE MATTER -- IN GENERAL.

305.08(c)(1)

Standard Reference Data Act. An exception exists under the Standard Reference Data Act (15 U.S.C. 290e) for any standard reference data that the Secretary of Commerce prepares or makes available under the Act. Claims registered under this Act should be annotated to read as follows: "Claim registered under the Standard Reference Data Act, P. L. 90-396 (15 U. S. C. 290e)."

305.08(c)(2)

Transfer of copyright to the U.S. Government. The fact that copyright protection is not possible for works authored by officers or employees of the U.S. Government, except as stated in section 305.08(c) above, does not prevent the U.S. Government from receiving and holding copy­rights transferred to it. See 17 U.S.C. 105.

305.08(d)

Edicts of government. Edicts of govern­ment, such as judicial opinions, admin­istrative rulings, legislative enact­ments, public ordinances, and similar official legal documents, are not copy­rightable for reasons of public policy. This applies to such works whether they are Federal, state, or local as well as to those of foreign governments.

305.09

Use of protected characters, names, slogans, symbols, and seals. Occasionally, works incorporate names, titles, slogans, symbols, or seals whose utilization is subject to restrictions by other laws. As these restrictions have nothing to do with copy­right, the incorporation of these elements does not prevent registration. Where the Copyright Office is aware that a use of certain elements within a work may be in violation of existing law, it may inform the applicant of the possible restriction and direct the applicant to the agency involved. Some examples of restricted names and characters are "Olympic," "Olympiad" (36 U.S.C. 380); "Woodsy Owl" (18 U.S.C. 711a) and "Smokey Bear" (18 U.S.C. 711).

306

Derivative works. A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramati­zation, fictionalization, motion picture ver­sion, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revi­sions, annotations, elaborations, or other modi­fications which, as a whole, represent an original work of authorship, is a "derivative work." 17 U. S. C. 101.

306.01

Extent of claim. The copyright in a deriva­tive work extends only to the material con­tributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the pre­existing material. 17 U.S.C. 103(b). Where a work contains a substantial amount of previously registered, published, or public domain material, the application should contain a statement of the preexisting mate­rial as well as the new copyrightable mate­rial.

306.02

Types of nondramatic literary derivative works. Examples of nondramatic literary derivative works are as follows:

306.02(a)

Translations. A translation is a ren­dering of a work from one language to another, as, for example, a work trans­lated from Russian into French, or from German into English. However, trans­literations and similar processes by which letters or sounds from one alpha­bet are converted to another are not copyrightable since the conversion is merely a mechanical act. Thus, merely changing a work from the Cyrillic to the Roman alphabet would not be copyright­able.

306.02(b)

Fictionalizations. A fictionalization is a treatment of a factual work in which the elements are recast, trans­formed, or adapted to produce a work of fiction. A work which is only loosely based on the ideas or facts found in an earlier work, is not considered to be a derivative work.

306.02(c)

Abridgments. An abridgment is commonly defined as a shortened or condensed version retaining the general sense and unity of the original work. An abridg­ment of a nondramatic literary work may be registrable, but more selectivity is required than merely omitting a section from the beginning or end.

307

Compilations. A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordi­nated, or arranged in such a way that the re­sulting work as a whole constitutes an original work of authorship. The term compilation includes collective works. 17 U.S.C. 101.

307.1

Registrability. A compilation is regis­trable if its selection, coordination, or arrangement as a whole constitutes an origi­nal work of authorship. The greater the amount of material from which to select, coordinate, or order, the more likely it is that the compilation will be registrable. Where the compilation lacks a certain mini­mum amount of original authorship, registra­tion will be refused. Any compilation consisting of less than four selections is considered to lack the requisite oriqinal authorship. See also section 625 of Chapter 600: REGISTRATION PROCEDURES.

Examples:

(1)

The selection and ordering of 20 of the best short stories of O. Henry would be registrable as a compilation.

(2)

Where all three of an author's plays were previously published and the present publication consists of all three plays, no registration based on compilation authorship is possible.

307.02

Telephone books, directories, price, lists, and the like. Telephone books, directories, price lists, and the like may be registered if they contain sufficient authorship in the form of compilation or other copyrightable material.

307.03

Coordination and arrangement. Reference to "coordinated" or "arranged", as used in the definition of a "compilation" in 17 U.S.C. 101, does not refer to format, but to the original ordering or groupinq of the items.

308

Collective works. A collective work is a work, such as a periodical issue, anthology, or ency­clopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. 17 U.S.C. 101.

308.01

In general. Generally, collective works incorporate two different types of material: first, the collective work as a whole, which includes the elements of compilation, revi­sion, editing, and similar authorship that goes into putting the work into final form: and secondly, any individual, self-contained contributions.

308.02

Collective works made for hire. The collec­tive work as a whole is often a work made for hire, and in such cases, the author is the employer or other person for whom the work was prepared. See 17 U.S.C. 201(b).

308.03

Registration of collective works. For a collective work, the application should generally contain the title of the collec­tive work, and the volume, number, and issue date, if any, in the appropriate space on the application form.

308.04

Periodicals other than daily newspapers. The following practices govern the registra­bility of periodicals other than daily news­papers:

308.04(a)

Separate editions. Where an issue of a periodical is published in two or more separate editions containing different copyrightable matter, separate registra­tions may be made.

Examples:

1)

English, Spanish, and French edi­tions of a magazine.

2)

Eastern, Midwestern, and West Coast editions of a weekly news magazine, in which some of the contents are changed to correspond with the re­gional interests of readers.

308.04(b)

Difference in advertising matter. Where the only difference between the editions is in advertising matter, separate reg­istrations will not be made unless the advertisements are asserted to belong to the copyright claimant for the periodi­cal.

308.04(c)

Difference in uncopyrightable elements. Where the only difference between the editions is in uncopyrightable elements such as typography, size, coloring, paper stock, or the like, separate reg­istrations will not be made.

308.05

Daily newspapers: various editions. A sin­gle registration may be made for the various editions of a daily newspaper or for a daily newspaper which contains different regional supplements. If the application for regis­tration refers to the various editions or supplements, the deposit must include such editions or supplements.

309

Certain periodicals not collective works. Cer­tain periodicals are not collective works since they consist entirely of a single contribution. The application should, in such event, assert a basis of claim in "text," if original, rather than "collective work."

310

Contributions to collective works. An indi­vidual contribution that was written indepen­dently and not as a "work made for hire" is considered a separately copyrightable work. See 17 U.S.C. 201(c). Where the owner of copyright in a collective work has not obtained ownership of all rights initially belonging to the author of a particular contribution, such person cannot be the "claimant" of copyright in that contribu­tion. See 37 C.F.R. 202.3(a)(3). To register such a contribution, a separate application must be submitted naming as claimant the author of the contribution, or the person or organization that has obtained ownership of all rights in the contribution that the author originally owned.

310.01

All rights to an independent contribution owned by claimant of collective work. Where the copyright claimant in a collective work is also the owner of all rights in a par­ticular contribution, the author of that contribution may be included as an author in the appropriate space on the application form. If such an individual author is iden­tified on the application, the transfer space should be completed showing how the claimant obtained all rights in the contri­bution. However, the Copyright Office does not require that all authors of contribu­tions covered by the copyright claim be identified on the application.

311

Unit registration for contributions to periodi­cals. The practices concerning unit regis­tration for contributions to periodicals will be dealt with in Chapter 1400: GROUP REGISTRATIONS.

312

Book jackets. Book jackets often contain sev­eral kinds of authorship such as text, illustra­tions, and photographs. A claim in a book jacket may be registered if it contains a suffi­cient amount of copyrightable authorship. Where the copyright claimant of the authorship in the book jacket is not the same as the claimant in the book, a separate registration must be made for the book jacket. Where the claim in a book jacket is based solely on "design," that is, the arrangement, spacing, and juxtaposition of un­copyrightable elements, registration will be refused. See section 305.07 above.

[Number 313 is reserved].

314

Tests and answer material for tests. The Copy­right Office will register claims to copyright in tests and machine scorable answer sheets provided the works contain a minimum level of original textual or compilation expression. The work may consist of a test, a test accompanied by an answer sheet, or merely an answer sheet. In a case where the work consists of an answer sheet lacking textual expression, registration can only be considered on the basis of substan­tial compilation authorship and the application should describe the extent of the claim as com­pilation. All such registrations are made under the rule of doubt. Answer sheets having insuf­ficient elements on which to base a claim of compilation authorship are not registrable. This practice is in accord with the decision in Harcourt, Brace & World, Inc. v. Graphic Con­trols Corp., 329 F.Supp. 517, 38 C.O.Bull. 12 (S.D.N.Y. 1971).

315

Secure tests. Secure tests are nonmarketed tests administered under supervision at speci­fied centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration. For these purposes a test is not marketed if copies are not sold but it is distributed and used in such a manner that own­ership and control of copies remain with the test sponsor or publisher. This category encom­passes tests used in conjunction with admissions to educational institutions, high school equivalency, placement in or credit for under­ graduate and graduate course work, awarding of scholarships and professional certification. See 37 C.F.R. 202.20(b)(4). In the case of tests, and answer material for tests, published separately from other literary works, the de­posit of one complete copy will suffice in lieu of two copies. In the case of any secure test, the Copyright Office will return the deposit to the applicant promptly after examination, pro­vided that sufficient portions, description, or the like are retained so as to constitute a sufficient archival record of the deposit. See 37 C.F.R. 202.20(c) (2)(vi). For further infor­mation on deposit, see Chapter 800: DEPOSIT FOR REGISTRATION.

316

Copyright ownership as distinct from ownership of material object. Ownership of a copyright, or of any of the exclusive rights under a copy­right, is distinct from ownership of any mate­rial object in which the work is embodied. Transfer of ownership of the material object does not of itself convey any rights in the copyrighted work, nor, in the absence of an agreement, does the transfer of ownership of a copyright convey property rights in any material object. See 17 U.S.C. 202.

316.01

Letters and diaries. In the case of let­ters, the author of the letter and not the recipient or possessor has the right to claim copyright. Similarly, the mere pos­session of a diary does not entitle the possessor to claim copyright, regardless of whether the material object was purchased or found. Letters and diaries are often pub­lished with additional new material such as a foreword or explanatory notes; registra­tion may be made for this new material, provided that it represents at least a cer­tain minimum amount of copyrightable author­ship. However, applications for works con­sisting of letters or diaries should contain information regarding the author of these works only where the claimant named on the application is authorized to claim copyright in this material. Where the author of the letter or diary is named on the application and is not also the claimant, the applica­tion must state how the rights in the letter or diary were transferred to the claimant.

317

Interviews. A work consisting of an interview often contains copyrightable authorship by the person interviewed and the interviewer. Each has the right to claim copyright in his or her own expression in the absence of a valid agree­ment to the contrary. Where an application for such a work names only the interviewee or the interviewer as author and claimant, and where the nature of authorship is described as "entire text," it is unclear whether the claim actually extends to the entire work, or only to the text by the interviewee or the interviewer. In any case where the extent of the claim is not clear, the Copyright Office must communicate with the applicant for clarification.

318

Facts, historical data, and "news." Works are often submitted for registration which contain "news" or other factual data, or which recount historical events. A distinction should be made between the original expression which the author uses and the noncopyrightable data, news, or facts which are set forth in the work. If it appears that the applicant is seeking to extend the claim to such uncopyrightable material, the Copyright Office will generally communicate with the applicant for clarification.

318.01

Research. The function or activity which constitutes "research" is not copyrightable. However, the expression embodied in the product or result of research may be copyrightable if it contains at least a certain minimum amount of original author­ship.

319

Author deceased before date of creation of work. Where the application names as author an indi­vidual who was deceased on the date of creation of the work, and who is alleged to have dic­tated his or her writings "from the beyond," the Copyright Office will generally write to explain the requirements of the law regarding authorship and ownership. Ordinarily, works of this kind will contain additional material, such as an introduction, and registration may be made for this material, provided there is sufficient copyrightable authorship. Where the only author named was deceased on the date of creation and that person is named as claimant, the Office will refuse to register the claim, since a de­ceased person cannot be a copyright claimant. Where the deceased person is named as the only author and another person or an organization is named as claimant, the Office will also refuse registration, since any transfer from the deceased author to the claimant could not ful­fill the requirement of the copyright law that transfers of copyright ownership be in writing and signed by the transferor.

320

Machine-readable works. A machine-readable work is either an unpublished work which is fixed, or a published work which is published only in the form of machine-readable copies from which the work cannot ordinarily be perceived except with the aid of a machine or device. Works published in a form requiring the use of a machine or device for purposes of optical enlargement (such as film, filmstrips, slide films, and works pub­lished in any variety of microform), and works published in visually perceptible form but used in connection with optical scanning devices, are not within this category. Examples of nondra­matic literary works which are machine-readable are computer programs and data bases. Such works may be embodied in the form of magnetic tapes or disks, computer chips, punched cards, or the like. See 37 C.F.R. 202.20(c)(2)(vii).

320.01

Literary works embodied in machine-readable form. Nondramatic literary works embodied in machine-readable form include computer programs and data bases, as well as other textual works, such as, instructional manuals, educational coursework, and the like.

321

Computer programs. A computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 17 U.S.C. 101.

Because computer programs do not generally con­tain textual information, the claim to copyright in a computer program is generally made on the basis of authorship expressed in "numerical symbols or indicia" contained in the program. Computer programs are ordinarily considered "literary works" and can be considered for reg­istration on Form TX.

Examples:

1)

A program that calculates the orbit of a rocket.

2)

A program that computes wages and salaries for a payroll.

3)

A self-teaching mathematics program for elementary students.

321.01

Source code. Source code is the computer program code as the programmer writes it, using a particular programming language, generally a program written in high-level language, such as, BASIC, COBOL, or FORTRAN. A program in source code must be changed into object code before the computer can execute it. This change is accomplished by a separate program within the computer called an assembler or a compiler to enable the program to be run on a particular brand and model computer (e.g., a compiler on a TRS-80 Model III would enable source code to be executed on that particular brand and model computer).

321.02

Object code. Object code is the representa­tion of the program in machine language (e.g., binary coding using zeros and ones or hexadecimal coding using letters and numbers or octal coding using 0 to 7) which the computer executes.

321.03

Relationship between source code and object code. The Copyright Office considers source code and object code as two representations of the same computer program. For registra­tion purposes, the claim is in the computer program rather than in any particular repre­sentation of the program. Thus separate registrations are not appropriate for the source code and object code representations of the same computer program. However, where a work in source code is registered in unpublished form, and the published version of the same work is submitted for registra­tion in object code form, registration will be made.

322

Copyrightable subject matter. To be registra­ble, a computer program must contain at least a certain minimum amount of original authorship in the form of statements or instructions.

323

Derivative computer programs. A derivative computer program is one that is based on or incorporates material from a previously pub­lished or registered or public domain program that has been revised, augmented, abridged, or otherwise modified so that the modifications, as a whole, represent an original work of author­ship. See also section 306 above.­

323.01

Registrability of a derivative computer program. Registration for a derivative computer program covers only the additions, changes, or other new material appearing in the program for the first time. Therefore, the new material itself must be original and represent copyrightable authorship. Where only a few minor revisions or additions have been made, or where those that were made are of a rote nature predetermined by the functional considerations of the hardware, registration for the new material is not possible.

Examples:

1)

A derivative program would be registra­ble where a substantial new program code has been added to a previously published program to enable it to accomplish addi­tional functions.

2)

A student-programmer translates a previ­ously published program from COBOL to FORTRAN [both are source-code program­ming languages.] The resulting transla­tion would represent a copyrightable derivative work.

3)

A previously published program is adapted to run on a different model or brand of computer. The Office will question the nature and extent of the adaptation to determine registrability. If the changes were functionally prede­termined, registration will be refused.

4)

An applicant files two applications for the same program: one specifically for the source code and the other for the object code. Since the object code version does not contain copyrightable differences, there is no basis for a separate registration for the object code. The Office will communicate with the applicant suggesting a single registration for the computer program.

324

Deposit for registration: identifying material. Where a computer program is fixed or published only in the form of machine-readable copies, the deposit for registration purposes shall consist of one copy of identifying portions of the pro­gram, reproduced in a form visually perceptible without the aid of a machine or device, either on paper or in microform. For these purposes,

"identifying portions" shall mean either the first and last 25 pages or equivalent units of the program if reproduced on paper, or at least the first and last 25 pages or equivalent units of the program if reproduced in microform, to­gether with the page or equivalent unit contain­ing the copyright notice, if any. See 37 C.F.R. 202.20(c)(2)(vii). If the computer pro­gram is less than 50 pages in length, the entire program should be deposited. For registration of a derivative computer program, identifying portions of the new material should be included in the deposit.

NOTE: Works fixed or published in both machine-readable and visually-perceptible form are not considered machine-readable works for purposes of deposit for registration. The appropriate deposit requirements for the visually-perceptible form apply. See section 806.12 of Chapter 800: DEPOSIT FOR REGISTRA­TION.

324.01

Title on identifying material. The identi­fying material deposited should bear a title clearly identifying the work for which registration is sought. Where the title is given on the application but not on the identifying material (for a published or unpublished work), the Copyright Office will add the title to the identifying material if it is clear that the identifying material represents the work specified on the appli­cation.

324.02

Notice on identifying material. The identi­fying material should include the page or equivalent unit containing the copyright notice if copies of the computer program were published with notice. Where the copy­right notice is encoded within the object code so that its presence and content are not readily discernible, the notice should be underlined or highlighted and its con­tents decoded.

324.03

Source code as best deposit. The Copyright Office considers the source code to be the best representation of the copyrightable authorship in a computer program. Thus the identifying material deposited for a com­puter program should be in source code.

324.04

Rule of doubt. Where the applicant is unable or unwilling to deposit identifying material in source code, depositing only object code instead, registration for the computer program will be made under the rule of doubt if the applicant confirms in writ­ing that the work as deposited contains copyrightable material. See also section 108.07 of Chapter 100: BASIC POLICIES.

NOTE: Because object code is basically unintelligible to copyright examiners, it is not possible to examine the deposit to de­termine the presence of copyrightable au­thorship. The doubt in this instance does not concern the copyrightability of computer programs in general.

324.05

Special relief. Special relief is a proce­dure which allows the Register of Copyrights to grant the requester the option of depositing less than or other than that which is required under the general deposit provisions. Special relief is an option available to computer program applicants when they are unable or unwilling to deposit the usual identifying material in source code format. See section 808 of Chapter 800: DEPOSIT FOR REGISTRATION: see also 37 C.F.R. 202.20(d).

324.05(a)

Trade secrets and special relief. When a computer program contains trade se­crets or other confidential material that the applicant is unwilling to dis­close by depositing the first and last 25 pages in source code, the Copyright Office is willing to consider special relief requests enabling the applicant to deposit less than or other than the usual 50 pages of source code. Special relief requests for the following three deposit options are presently being granted upon receipt of the applicant's written request for special relief:

1)

First and last 25 pages of source code with some portions blocked out, provided that the blocked-out portions are proportionately less than the material still remaining.

2)

At least the first and last ten pages of source code alone (with no blocked-out portions).

3)

First and last 25 pages of object code plus any ten or more consecu­tive pages of source code (with no blocked-out portions).

324.06

Specific deposit examples. The following examples concern various deposit situations.

1)

Source code and object code with one application. Where the first and last 25 pages each of source code and object code (total of 100 pages) are deposited with one application on Form TX for a single computer program, the registra­tion is made using the combined source code and object code identifying mate­rial.

2)

Object code only. When the identifying material is deposited only in object code, the Copyright Office will corre­spond with the applicant requesting either the deposit of source code or, as a prerequisite to registration under the rule of doubt, the applicant's written confirmation that the computer program represented by the object code deposit contains copyrightable authorship.

3)

Object code plus other clearly copy­rightable material. If the deposit consists of identifying material in object code for a computer program plus other clearly copyrightable material (such as a user's manual) and the single claim is in the entire work, there is still doubt as to the presence of copy­rightable authorship in the computer program even though the claim includes clearly copyrightable text in the man­ual. The Copyright Office will communi­cate with the applicant about the de­posit of object code and request either the deposit of source code or, as a prerequisite to the computer program portion of the claim being registered under the rule of doubt, the applicant's written assurance that the computer program as deposited represents copy­rightable authorship.

4)

Incomplete deposit of identifying mate­rial. If the identifying material is less than 50 pages in length, the Copy­right Office will consider that the deposit constitutes the entire program for which registration is sought. How­ever, if there is information to the contrary (such as missing page numbers or obvious wide gaps in line numbers), the Office will inquire as to the com­pleteness of the deposit.

5)

Single application for computer program and manual published as a unit. When the deposit consists of one copy of identifying material plus one copy of the published manual, the Copyright Office will not require deposit of a second copy of the published manual.

6)

Separate applications for computer pro­gram and manual published as a unit. If the deposit for these two claims con­sists of one copy of identifying mate­rial for the computer program and one copy of the published manual, the Copy­right Office will request a second copy of the published manual.

325

Completing the application form. An application for registration of a computer program should be completed with regard to the copyrightable authorship in the computer program. For example, an application describing the authorship or extent of claim as "object code" will be ques­tioned.

325.01

Asserting a claim in a derivative computer program. Ordinarily, the application for a dervative computer program should limit the claim to the copyrightable new material, excluding the preexisting material that was previously registered or published or that is in the public domain. To limit the claim appropriately in such cases, the "material added" statement on the application should be completed.

325.01(a)

When a "material added" statement is not required. When the preexisting material has never been registered or published or when the amount of preexisting mate­rial is not substantial, the "material added" statement on the application need not be completed.

Examples:

1)

A computer program entitled "X-103 program, Version 3" incorporating material from two earlier develop­mental versions that remained un­registered and unpublished would not be considered a derivative computer program for registration purposes. No "material added" statement would be required.

2)

The application for a derivative program containing a total of 5,000 lines of program text, 50 of which were published previously, would not be required to give a "material added" statement. However, if such a statement were given, the Office would not ask to have it deleted.

325.01(b)

When a "material added" statement is required. The Copyright Office will require a "material added" statement on an application for a derivative computer program only when the previously pub­lished or registered or public domain material contained in the new version of the program is substantial or, in rela­tion to the work as a whole, represents a significant portion of the work.

325.02

Nature of authorship and extent of claim. 'In an application for an entirely new com­puter program, the "nature of authorship" space is intended not only to describe the authorship but is also intended to delineate the extent of the claim. In an application for a derivative computer program, the "material added" statement generally delineates the extent of the claim. NOTE: For specific definitions of the terms listed below, see the Glossary of Terms in section 326 below. The following lists are illus­trative and not exhaustive.

325.02(a)

Copyrightable elements. The following descriptions of authorship or of mate­rial added will ordinarily not be ques­tioned:

• computer program
• entire computer code
• entire program
• entire program code
• entire text
• entire work
• module, new modules, revised modules
• program
• program instructions
• program listing
• program text, programming text
• revised program
• routine, new routines, revised rou­tines
• software, computer software
• subroutine, new subroutines, revised subroutines
• text
• text of computer game
• text of ... (except "text of object code" or "text of algorithm")
• text of program
• translation from (one programming language) to (another programming language)
• wrote program

325.02(b)

Unclear elements. The following terms as commonly used with reference to com­puter software mayor may not represent copyrightable authorship. Therefore, the Copyright Office will generally question an application describing the claim or the authorship in these terms:

• adaptation or translation (where program appears to have been adapted merely to run on different hardware)
• compilation
• debugging
• enhancements
• error corrections
• features
• patching
• translation (listed alone)

325.02(c)

Noncopyrightable elements. Where the Copyright Office has determined that the claim is based only on the following, registration will be refused:

• algorithm (or text of algorithm)
• analysis
• cassette
• chip
• disk
• encrypting
• EPROM
• firmware
• formatting
• functions
• language (alone)
• logic
• mnemonics
• printout
• PROM
• ROM
• software methodology
• system
• system design(er)

326

Glossary of terms.

The following is a list of terms commonly used with reference to computer programs.

ALGORITHM

A prescribed set of well defined rules or proc­esses for the solution of a problem.

ASSEMBLER

A computer program that changes assembly lan­guage into the language that the computer oper­ates on directly—the "object code."

ASSEMBLY LANGUAGE

A language—verbs, nouns, syntax, etc.—used by programmers to write computer programs. It is relatively "low level" in that the pro­grammer must keep many machine details in mind. The source language for an assembler.

BASIC

A rather simple program­ming language that is widely used with the new micro-computers.

BUG

A mistake or malfunc­tion.

CARTRIDGE

A very ambiguous term meaning some form of removable magnetic data storage medium, used along with a fixed (non-removable) medium. It may use magnetic tape or magnetic disk as the medium.

CASSETTE

A small, self-contained volume of magnetic tape used for data storage. Similar to a sound­ recording cassette.

CHIP

In microcircuitry, a single device, either a transistor or a diode, that has been cut from a larger wafer of sili­con.

COBOL (Common Business Oriented Language)

A high-level language developed in the early 1960's and used primarily for business applications.

CODE

Can be used as verb or noun. As a noun, it can apply to (1) the data, meaning the series of bits used to represent the characters, or (2) the programs, meaning the computer instruc­tions as written in the programming language. As a verb, it means creating the coded data or programs.

CODING

The act of actually writing program state­ments.

COMPILE

To prepare a machine language program from a computer program written in another programming language by making use

DISK

The popular form of bulk data storage with rapid access capabilities. Data is recorded in tracks on a magnetic medium on the disk surface. The two main forms are "floppy disks" and "hard disks."

DUMP

The term applied to the process of making a copy of some or all data stored in a storage device, usually for backup purposes.

ENCRYPTION

The process of system­atically turning mes­sages (information) into gibberish, as a security measure. The inverse process of decryption is needed for recovering the original messages.

ENHANCEMENTS

Changes or refinements made to an existing computer program.

EPROM (Erasable Programmable Read­ Only Memory)

A type of computer memory device for storing data within a computer: can be erased and repro­grammed.

FEATURES

Particular capabilities or functions of a given computer program.

FIRMWARE

This term is applied to computer programs that are stored in a type of memory (a ROM) that can in general only be read, not erased or changed easily. Firmware is used both for protection and for higher speed.

FLOPPY DISK

A thin plastic disk, usually 5-1/4 inches or 8 inches in diameter, enclosed in a square, protective envelope, with a magnetic surface for storing information: a diskette.

FORTRAN

The Formula Translation programming language, originally developed in the late 1950's for engineering and scien­tific programming. It is still the most widely used language for these types of programs.

HARDWARE

The term applied to the computer equipment—the processor unit, the storage devices, input devices, printers, etc. Hardware is differentiated from "software" and "firmware."

INTERPRETER

A computer program in the same general class as "assembler" and "compiler." All three

INTERPRETER (cont'd)

translate or change a programmer's source code into the object code that the computer uses.

LANGUAGE

In the computer field, the term generally means a programming language used by a programmer for writing a computer pro­gram. This program usually must be trans­lated or changed (assem­bled, compiled, inter­preted) into object code before the computer can execute the program.

MACHINE LANGUAGE (MACHINE CODE OR OBJECT CODE)

The instructions the machine actually executes.

MNEMONIC CODE

Symbols used in program­ming to assist the human memory,e.g., an abbre­viation such as "MPY" for "multiply."

MODULE

A series or group of related instructions within a computer pro­ gram, analogous to a chapter of a book.

OBJECT CODE

This is the program in actual machine language which the computer exe­cutes. It has been changed from the pro­gramming language used by the programmer by means of an "assembler," "compiler," or "inter­preter."

PATCH, PATCHING

Segments of program code (individual statements or routines) added to the body of a completed computer program to enhance or amend the program.

PRINTOUT

A visually perceptible printed copy. Is used variously to mean a listing of the computer instructions that form a program or the product resulting from the op­eration of the computer program.

PROM (Programmable Read-only Memory)

A programmable ROM.

RAM (Random-Access Memory)

Computer storage device in which words may be "written" (stored) or "read" (recovered) in any order at random. Conventional internal memory.

ROM (Read-Only Memory)

A computer device con­ taining a program or data permanently stored when the unit was made. In theory, it can apply to either internal memory or large-volume, exter­nal data storage. To­ day, it is applied to the former. Programs stored in ROM cannot be changed easily and they execute faster;see alsoabove entry under FIRM­WARE.

ROUTINE OR PROGRAMMED ROUTINE

A series or group of instructions usually contained within a main program analogous to a paragraph within a textual work.

SOFTWARE

A set of computer pro­grams, procedures, and possibly associated documentation concerned with the operation of a data processing system, e.g., compilers, library routines, manuals, cir­cuit diagrams. Con­trasts with hardware.

SOURCE CODE

This is the computer program code as the programmer originally writes it, in the pro­gramming language being used. It must be changed into object code before the computer can execute it, unless the program was originally written in object code.

SUBROUTINE

A routine that can be part of another routine analogous to a sentence within a paragraph of narrative text.

TAPE, MAGNETIC

Large volume data storage medium for computers.

327

Instructional booklets, flowcharts, and the like. Registration of claims to copyright may be made for instructional booklets, flowcharts, and other material related to the development or explanation of the computer program. Because the authorship in such material is generally visually perceptible rather than machine-read­able, identifying materials may not be submitted in lieu of an actual copy or copies.

328

Automated data bases. An automated data base is a body of facts, data, or other information assembled into an organized format, suitable for use in a computer and comprising one or more files. Where all the data in an automated database has been previously published or regis­tered, or is in the public domain, the claim would be limited to the authorship involved in the compilation. Where the data is substan­tially or wholly new, the claim could include additional text, compilation and revised text, updates, or the like.

[END OF CHAPTER 300]