Copyright “Best Alternative to Patents” for Software Programs
Until recently, copyright was not regarded as being of much relevance to the software developers/inventors but things have changed drastically. Copyrighting has become an extremely important weapon in preventing piracy of computer software and preventing copying of various useful items to which “art” has been applied. In this article, we will shed some light on using Copyright as a legal option or an alternative to patents, for software programs.
Difficulties in Patenting Software Programs
Patents often offer a broader IP protection for a software program. However, requirement that the invention must be “new” and “non-obvious” causes the most problems for software patent applications. On the other hand, it aids in analyzing as to whether one should pursue patent or copyright protection for such an invention.
Patent protection does not exist until a patent is issued. Generally, a patent grant takes approximately 2 years (or more) from the date of filing a patent application. Additionally, in US, the cost of preparation and prosecution of a software patent application may go up to $6,000-$15,000. Thus, one can clearly see the kind of leverage, copyrighting software gives to the inventor.
Advantages of Copyrighting Over Patenting For A Software
1. The set criteria’s for getting a copyright are much less complex.
• Copyright protection is given on the expression, not the idea, of any original work whether literary, artistic, dramatic, musical, and certain other intellectual works including software programs. Copyright protection comes into being as and when the original work gets recorded in tangible form. However, copyright registration is generally required to obtain damages in an infringement action against one who copies the work.
2. Copyright registration is a relatively simple procedure and does normally require submission of “identifying portions” of a computer program, although “special relief” may be available. For e.g., if the program contains trade secret information. Its other advantages include:
• The ability to obtain attorney fees and statutory damages which may be important if one cannot prove economic damages
• Registration provides prima facie evidence of the facts stated thereon
• Protection is provided against an alleged subsequent deceitful assignment of rights in the work.
3. The term for a copyright is lengthier as against that of a patent (20 years in most cases) and in most cases, it is also extendable. For e.g., in US, once it exists, for works created after January 1, 1978, copyright, in general, lasts for a period of 70 years from the death of the inventor/creator. In the case of works made for hire, however, protection runs for a period of 95 years from publication or 120 years from its creation, whichever comes first.
4. In US, copyright protection can generally be obtained in approx. 3 months.
5. Copyright infringement, unlike infringement of a patent, if carried out willfully and for purposes of commercial or private financial gain, can be prosecuted as a crime as well as a civil wrong. The maximum penalty depends on the exact nature of the defendants acts. In most egregious cases, there is also provision for imprisonment for up to 5 years.
6. Like patents, copyright is subject to national requirements. However, as most major countries are parties to the Berne and Universal Copyright Conventions (effective since March 1, 1989), copyrights are much more easily enforceable around the world.
Although, we have stated several advantages of copyrighting over patenting as far as the computer softwares are concerned, the most important factor in deciding whether to seek copyright or patent protection for software is to weigh the degree of difficulty required in obtaining the protection against the scope of protection afforded. And it is always recommended that if your software meets the requirements for patent protection (as it is a significant advance in the domain of software engineering) patent protection shall be pursued. However, if it is not the case, as for most softwares, copyrighting is the best legal and intellectual property protection available. Further guidance can be taken from a professional (such as a patent attorney) who is capable of critically analyzing all the factors in determining the appropriate form of IP protection for software.