By Taylar-Simone McCants, J.D. | Legally reviewed by Amber Sheppard, Esq. | Last reviewed September 21, 2023
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Considering the time, effort, expertise, and innovation required to create and maintain software, it is no wonder that an area of law has emerged to protect software intellectual property (IP) rights specifically. Intellectual property law governs intellectual creations and innovations. Intellectual property protection is essential for small business owners, startups, and entrepreneurs. Knowing the IP rights available to you is crucial when creating innovative works.
There are four types of intellectual property: trademarks, trade secrets, patents, and copyrights. Copyrights protect different forms of creative works, such as:
Copyright IP protection provides software developers exclusive rights to duplicate, modify, and share their computer programs.
The frequently asked questions below outline key questions regarding software copyright law. They include:
For more information, visit FindLaw's Intellectual Property section.
A copyright is a form of intellectual property protection given to creators of creative, original works.
Software copyright protects the expression of a computer or software program as a creative work. Copyright protects the software's source code. The source code is the readable form of the program. The software copyright grants the inventor of the software exclusive rights over the program's structures, design, and code. Computer programs can receive copyright.
A software patent protects the functionality or method in the software. In contrast, the software copyright protects the source or object code.
A software patent is a type of utility patent. A utility patent protects novel and useful processes, compositions of matter, a machine, or improvements thereof. This protection includes software-related inventions.
Patents, unlike copyrights, are not automatic upon the creation of the software. Under patent law, patents require registration. You must file a patent application with the U.S. Patent and Trademark Office (USPTO) to obtain a software patent.
While there is little explicit software copyright law at the federal level, federal copyright law protects software authors so long as they register their software copyrights. This registration is very straightforward, and costs range from $45-$65 for one piece of software.
Software copyright law does not require hiring an attorney to publish your copyright registration, although it is a good idea to consult with one before filing. You can fill out an application that asks for the:
Send this application electronically, the application fee, and one or two copies of your copyrighted software to the United States Copyright Office.
Not necessarily. If you are only publishing your software for personal use, and it has no value to anyone else, you do not need to register the copyright. It's still a good idea to copyright it in case someone else publishes something similar and tries to sue you for infringement. Usually, if your work is valuable enough for you to post it, it is important enough to register.
Yes. Because you have registered, your work is automatically copyrighted when you fix it to a tangible medium. Thus, you own the copyright—nobody can copy, display, duplicate, or change your work without your permission.
However, you lose this automatic protection when someone infringes on your copyright. You must file a federal lawsuit to stop the infringement and convince the judge to compensate you for your loss. You can only file this lawsuit if you have registered your copyright with the U.S. Copyright Office.
Although registration is easy, it can take time to process. This is why registering immediately is essential. Don't wait until someone infringes on your software. You want to report an infringement immediately. It is costly to expedite copyright registration. So, register your software right away.
As long as you register your software before the infringement or within three months of publishing of your work, you may be able to recover damages. In addition to ordering the infringer to stop their use, you can be compensated for your losses. You can also ask the court for:
It can be hard to show the specific damages suffered, so the ability to collect special damages is beneficial. Federal lawsuits tend to be very expensive. The ability to collect attorney fees and court fees is an incentive to file suit.
In the United States, software copyright protection lasts for the lifetime of the inventor or creator plus 70 years after their death if created after 1978. A software work for hire lasts 95 years from the year of its first publication or 120 years from the year of its creation, whichever expires first.
Be sure to consult an intellectual property attorney to help navigate the complexity of U.S. copyright law. An intellectual property attorney can also help you gain legal protection for other forms of intellectual property.
Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.
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