Compendium II: Copyright Office Practices - Chapter 300

Chapter 300

__________________________

COPYRIGHTABLE MATTER:

NONDRAMATIC LITERARY WORKS

 

Outline of Topics

 

 

301 Applicability of this chapter.

302 Definition: literary works.

303 Definition: nondramatic literary works.

304 Copyrightable literary expression.

305 Noncopyrightable material.

305.01 Names, titles, slogans, and other short

phrases.

305.02 Ideas, methods, or systems.

305.03 Measuring and computing devices.

305.04 Works consisting entirely of information

that is common property.

305.05 Blank forms.

305.06 Format or layout.

305.07 Book design.

305.08 Limits on copyrightability.

305.09 Use of protected characters, names, slogans,

symbols, and seals.

306 Derivative works.

 

306.01 Extent of claim.

306.02 Types of nondramatic literary derivative

works.

 

307 Compilations.

 

307.01 Registrability.

307.02 Telephone books, directories, price lists,

and the like.

307.03 Coordination and arrangement.

 

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Chapter 300

COPYRIGHTABLE MATTER:

NONDRAMATIC LITERARY WORKS                      - 2 - ­

 

308 Collective works.

 

308.01 In general.

308.02 Collective works made for hire.

308.03 Registration of collective works.

308.04 Periodicals other than daily newspapers.

308.05 Daily newspapers: various editions.

 

309 Certain periodicals not collective works.

 

310 Contributions to collective works.

 

310.01 All rights to an independent contribution owned by claimant of collective work.

 

311 Unit registration for contributions to periodi­cals.

 

312 Book jackets.

 

 

[Number 313 is reserved].

 

 

314 Tests and answer material for tests.

 

315 Secure tests.

 

316 Copyright ownership as distinct from ownership of material object.

 

316.01 Letters and diaries.

 

317 Interviews.

 

318 Facts, historical data, and "news."

 

318.01 Research.

 

319 Author deceased before date of creation of work.

 

 

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Chapter 300

COPYRIGHTABLE MATTER:

NONDRAMATIC LITERARY WORKS                      - 3 –

 

320 Machine-readable works.

 

320.01 Literary works embodied in machine-readable

form.

 

321 Computer programs.

 

321.01 Source code.

321.02 Object code.

321.03 Relationship between source code and object

code.

 

322 Copyrightable subject matter.

 

323 Derivative computer programs.

 

323.01 Registrability of a derivative computer

program.

 

324 Deposit for registration: identifying material.

 

324.01 Title on identifying material.

324.02 Notice on identifying material.

324.03 Source code as best deposit.

324.04 Rule of doubt.

324.05 Special relief.

324.06 Specific deposit examples.

 

325 Completing the application form.

 

325.01 Asserting a claim in a derivative computer

program.

325.02 Nature of authorship and extent of claim.

 

326 Glossary of terms.

 

327 Instructional booklets, flowcharts, and the

like.

 

328 Automated data bases.

 

 

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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 embod-

ied. 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 rep-

resenting all or a substantial portion of a

story as actually occurring.

 

304 Copyrightable literary expression. To be regis-

trable, 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 copyrightable 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 copyright-

able. See 37 C.F.R. 202.1(a).

300-1

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300-2

 

305 Noncopyrightable material. (cont'd)

 

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 de-

­scribed, explained, illustrated, or embodied

in such work. See 17 D.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 registra-

­tion 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 infor-

ma­tion, and do not in themselves convey infor-

­mation, are not copyrightable. See 37

C.F.R. 202.1(c). However, the Copyright

 

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300-3

 

305 Noncopyrightable material. (cont'd)

 

305.05 Blank forms. (cont'd)

 

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 pro-

tect 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, lead-

ing (space between lines of type), placement

of folio (page numbers), arrangement of type

on pages, and placement, spacing, and juxta-

position 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 catego-

ries of nondramatic literary works are not

copyrightable, even though they may contain

a substantial amount of textual material.

They include the following:

 

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300-4

 

305 Noncopyrightable material. (cont’d)

 

305.08 Limits on copyrightability. (cont’d)

 

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 them-

selves 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 exam-

ple, an unlawful English-language trans-

lation that cannot be separated from the

original French-language version would

not be registrable. However, the Copy-

right Office does not generally investi-

gate the copyright status of preexisting

material or whether it has been used

lawfully. Where a work unlawfully em-

ploys 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 IS

official duties. Ordinarily, such works

are in the public domain in the United

States. See section 206 of Chapter 200:

COPYRIGHTABLE MATTER --IN GENERAL.

 

 

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300-5

 

305 Noncopyrightable material. (cont'd)

 

305.08 Limits on copyrightability. (cont'd)

 

305.08(c) Works of the U.S. Government. (cont'd)

 

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 copy-

rights transferred to it. See 17

U.S.C. 105.

 

305.08(d) Edicts of government. Edicts of govern-

ment, such as judicial opinions, admin-

istrative rulings, legislative enact-

ments, public ordinances, and similar

official legal documents, are not copy-

rightable 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 re-

strictions have nothing to do with copy-

right, the incorporation of these elements

 

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300-6

 

305 Noncopyrightable material. (cont'd)

 

305.09 Use of protected characters names, slogans,

symbols, and seals. (cont'd)

 

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 char-

acters are "Olympic," "Olympiad" (36 U.S.C.

380); "Woodsy Owl" (18 U.S.C. 711a); and

"Smokey Bear" (16 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, dramati-

zation, fictionalization, motion picture ver-

sion, 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 revi-

sions, annotations, elaborations, or other modi-

fications 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 deriva-

tive work extends only to the material con-

tributed 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 pre-

existing 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 mate-

rial as well as the new copyrightable mate-

rial.

 

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300-7

 

306 Derivative works. (cont'd)

 

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 ren-

­dering of a work from one language to

another, as, for example, a work trans-

­lated from Russian into French, or from

German into English. However, trans-

­literations and similar processes by

which letters or sounds from one alpha-

­bet 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 copyright-

­able.

 

306.02(b) Fictionalizations. A fictionalization

is a treatment of a factual work in

which the elements are recast, trans­-

formed, 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 abridg-

­ment 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, coordi-

­nated, or arranged in such a way that the re­-

sulting work as a whole constitutes an original

work of authorship. The term “compilation”

includes collective works. 17 D.S.C. 101.

 

 

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300-8

307 Compilations. (cont'd)

 

307.01 Registrability. A compilation is regis-

trable if its selection, coordination, or

arrangement as a whole constitutes an origi-

nal 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 mini-

mum amount of original authorship, registra-

tion will be refused. Any compilation

consisting of less than four selections is

considered to lack the requisite original

authorship. See also section 625 of Chapter

600: REGISTRATION PROCEDURES.

 

Examples:

(I) The selection and ordering of 20 of the

best short stories of 0. 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 grouping of the items.

 

308 Collective works. A collective work is a work,

such as a periodical issue, anthology, or ency-

clopedia, in which a number of contributions,

constituting separate and independent works in

themselves, are assembled into a collective

whole. 17 U.S.C. 101.

 

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300-9

 

308 Collective works. (cont'd)

 

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, revi­

sion, 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 collec-

­tive 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 D.S.C. 201(b).

 

308.03 Registration of collective works. For a

collective work, the application should

generally contain the title of the collec-­

tive 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 registra­-

bility of periodicals other than daily news­-

papers:

 

308.04(a) Separate editions. Where an issue of a

periodical is published in two or more

separate editions containing different

copyrightable matter, separate registra-­

tions may be made.

 

Examples:

 

1) English, Spanish, and French edi-

­tions 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 re-

­gional interests of readers.

 

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300-10

308 Collective works. (cont'd)

 

308.04 Periodicals other than daily newspapers.

(cont'd)

 

308.04(b) Difference in advertising matter. Where

the only difference between the editions

is in advertising matter, separate reg-

istrations will not be made unless the

advertisements are asserted to belong to

the copyright claimant for the periodi-

cal.

 

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 reg-

istrations will not be made.

 

308.05 Daily newspapers: various editions. A sin-

gle 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 regis-

tration refers to the various editions or

supplements, the deposit must include such

editions or supplements.

 

309 Certain periodicals not collective works. Cer-

tain 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 indi-

vidual contribution that was written indepen-

dently and not as a "work made for hire" is con-

sidered a separately copyrightable work. See 17

U.S.C. 20l(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 contribu-

tion. See 37 C.F.R. 202.3(a)(3). To register

 

 

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300-11

 

310 Contributions to collective works. (cont'd)

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 par-

ticular 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 iden-

tified on the application, the transfer

space should be completed showing how the

claimant obtained all rights in the contri-

bution. However, the Copyright Office does

not require that all authors of contribu-

tions covered by the copyright claim be

identified on the application.

 

311 Unit registration for contributions to periodi-

cals. The practices concerning unit regis-

tration for contributions to periodicals will be

dealt with in Chapter 1400: GROUP REGISTRATIONS.

 

312 Book jackets. Book jackets often contain sev-

eral kinds of authorship such as text, illustra-

tions, and photographs. A claim in a book

jacket may be registered if it contains a suffi-

cient 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 un-

copyrightable elements, registration will be

refused. See section 305.07 above.

 

[Number 313 is reserved].

 

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300-12

314 Tests and answer material for tests. The Copy-

right 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 substan-

tial compilation authorship and the application

should describe the extent of the claim as com-

pilation. All such registrations are made under

the rule of doubt. Answer sheets having insuf-

ficient 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 Con-

trols 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 speci-

fied 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 own-

ership and control of copies remain with the

test sponsor or publisher. This category encom-

passes 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 de-

posit 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, pro-

vided 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 infor-

mation on deposit, see Chapter 800: DEPOSIT FOR

REGISTRATION.

 

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300-13

316 Copyright ownership as distinct from ownership

of material object. Ownership of a copyright,

or of any of the exclusive rights under a copy-

right, is distinct from ownership of any mate-

rial 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 let-

ters, the author of the letter and not the

recipient or possessor has the right to

claim copyright. Similarly, the mere pos-

session 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 pub-

lished with additional new material such as

a foreword or explanatory notes: registra-

tion may be made for this new material,

provided that it represents at least a cer-

tain minimum amount of copyrightable author-

ship. However, applications for works con-

sisting 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 applica-

tion 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 agree-

ment to the contrary. Where an application for

such a work names only the interviewee or the

interviewer as author and claimant, and where

 

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300-14

317 Interviews. (cont'd)

 

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 author-

ship.

 

319 Author deceased before date of creation of work.

Where the application names as author an indi-

vidual who was deceased on the date of creation

of the work, and who is alleged to have dic-

tated 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

 

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300-15

 

319 Author deceased before date of creation of work.

(cont'd)

 

will refuse to register the claim, since a de-

ceased 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 ful-

fill 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 pub-

lish7d 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 nondra-

matic 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.

 

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300-16

 

321 Computer programs. (cont’d)

 

Because computer programs do not generally con-

tain 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 reg-

istration on Form TX.

 

Examples:

I) 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 representa-

tion 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.

 

[1984]

 

 

 

300-17

321 Computer programs. (cont'd)

 

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 registra-

tion purposes, the claim is in the computer

program rather than in any particular repre-

sentation 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 registra-

tion in object code form, registration will

be made.

 

322 Copyrightable subject matter. To be registra-

ble, 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 pub-

lished 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 author-

ship. 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.

 

[1984]

 

 

300-18

 

323 Derivative computer programs. (cont'd)

 

323.01 Registrability of a derivative computer

program. (cont’d)

 

Examples:

 

I) A derivative program would be registra-

ble where a substantial new program code

has been added to a previously published

program to enable it to accomplish addi-

tional functions.

 

2) A student-programmer translates a previ-

ously published program from COBOL to

FORTRAN [both are source-code program-

ming languages]. The resulting transla-

tion 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 prede-

termined, 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 pro-

gram, reproduced in a form visually perceptible

without the aid of a machine or device, either

on paper or in microform. For these purposes,

 

[1984]

 

 

300-19

 

324 Deposit for registration: identifying material.

(cont’d)

 

"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, to-

gether with the page or equivalent unit contain-

ing the copyright notice, if any. See 37

C.F.R. 202.20(c)(2)(vii) .If the computer pro-

gram 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 REGISTRA-

TION.

 

324.01 Title on identifying material. The identi-

fying material deposited should bear a title

clearly identifying the work for which reg-

istration 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 appli-

cation.

 

324.02 Notice on identifying material. The identi-

fying material should include the page or

equivalent unit containing the copyright

notice if copies of the computer program

were published with notice. Where the copy-

right notice is encoded within the object

 

[1984]

 

 

300-20

 

324 Deposit for registration: identifying material.

 

324.02 Notice on identifying material. (cont'd)

 

code so that its presence and content are

not readily discernible, the notice should

be underlined or highlighted and its con-

tents 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 com-

puter 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 writ-

ing that the work as deposited contains

copyrightable material. See also section

108.07 of Chapter l00: BASIC POLICIES.

 

NOTE: Because object code is basically

unintelligible to copyright examiners, it is

not possible to examine the deposit to de-

termine the presence of copyrightable au-

thorship. The doubt in this instance does

not concern the copyrightability of computer

programs in general.

 

324.05 Special relief. Special relief is a proce-

dure 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).

 

[1984]

 

 

 

300-21

 

324 Deposit for registration: identifying material.

(cont'd)

 

324.05 Special relief. (cont'd)

 

324.05(a) Trade secrets and special relief. When

a computer program contains trade se-

crets or other confidential material

that the applicant is unwilling to dis-

close 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 consecu-

tive 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 registra-

tion is made using the combined source

code and object code identifying mate-

rial.

 

[1984]

 

 

300-22

 

324 .for registration: identifying material.

 

324.06 Specific deposit examples. (cont'd)

 

2) Object code only. When the identifying

material is deposited only in object

code, the Copyright Office will corre-

spond 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 copy-

rightable 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 copy-

rightable authorship in the computer

program even though the claim includes

clearly copyrightable text in the man-

ual. The Copyright Office will communi-

cate with the applicant about the de-

posit 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 copy-

rightable authorship.

 

4) Incomplete deposit of identifying mate-

rial. If the identifying material is

less than 50 pages in length, the Copy-

right Office will consider that the

deposit constitutes the entire program

for which registration is sought. How-

ever, 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 com-

pleteness of the deposit.

[1984]

 

 

300-23

 

324 Deposit for registration: identifying material.

 

324.06 Specific deposit examples. (cont'd)

 

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 pro-

gram and manual published as a unit. If

the deposit for these two claims con-

sists of one copy of identifying mate-

rial for the computer program and one

copy of the published manual, the Copy-

right 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 au-

thorship in the computer program. For example,

an application describing the authorship or

extent of claim as "object code" will be ques-

tioned.

 

325.01 Asserting a claim in a derivative computer

program. Ordinarily, the application for a

derivative 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.

 

[1984]

 

300-24

 

325 Completing the application form. (cont'd)

 

325.01 Asserting a claim in a derivative computer

program. (cont'd)

 

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 mate-

rial 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 develop-

mental versions that remained un-

registered 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 pub-

lished or registered or public domain

material contained in the new version of

the program is substantial or, in rela-

tion to the work as a whole, represents

a significant portion of the work.

 

[1984]

 

 

 

300-25

 

325 Completing the application form. (cont'd)

 

325.02 Nature of authorship and extent of claim.

In an application for an entirely new com-

puter 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 illus-

trative and not exhaustive.

 

325.02(a) Copyrightable elements. The following

descriptions of authorship or of mate-

rial added will ordinarily not be ques-

tioned:

 

- 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 rou-

tines

- 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

 

[1984]

 

 

300-26

 

325 Completing the application form. (cont'd)

 

325.02 Nature of authorship and extent of claim.

(cont’d)

 

325.02(b) Unclear elements. The following terms

as commonly used with reference to com-

puter 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)

 

[1984]

 

 

300-27

 

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 proc-

esses for the solution

of a problem.

 

ASSEMBLER -- A computer program that

changes assembly lan-

guage into the language

that the computer oper-

ates 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 pro-

grammer must keep many

machine details in mind.

The source language for

an assembler.

 

BASIC -- A rather simple program-

ming language that is

widely used with the new

micro-computers.

 

BUG -- A mistake or malfunc-

tion.

 

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.

 

[1984]

 

300-28

326 Glossary of terms. (cont’d)

 

CASSETTE -- A small, self-contained

volume of magnetic tape

used for data storage.

Similar to a sound-

recording cassette.

 

CHIP -- In micro circuitry, a

single device, either a

transistor or a diode,

that has been cut from a

larger wafer of sili-

con.

 

COBOL -- (Common Business Oriented

Language) -- A high-level language

developed in the early

19601s and used primarily

for business applications.

 

CODE -- Can be used as verb or

noun. As a noun, it can

..c apply to (I) the data,

meaning the series of

bits used to represent

the characters, or (2)

the programs, meaning

the computer instruc-

tions as written in the

programming language.

As a verb, it means

creating the coded data

or programs.

 

CODING -- The act of actually

writing program state-

ments.

 

COMPILE -- To prepare a machine

language program from a

computer program written

in another programming

language by making use

 

[1984]

 

 

 

300-33

326 Glossary of terms. (cont'd)

 

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 op-

eration 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, exter-

nal data storage. To-

day, it is applied to

the former. programs

stored in ROM cannot be

changed easily and they

 

[1984]

 

 

300-29

 

326 Glossary of terms. (cont'd)

 

COMPILE (cont'd) -- of the overall logic structure of the pro­gram, or generating more than one machine in­struction for each sym­bolic statement, or both, as well as per­forming the function of an assembler.

 

COMPILER -- A computer program that is used to change a high-level programming language into machine language. It is similar to an assembler.

 

COMPUTER -- A data processor that can perform substantial computation, including numerous arithmetic or logic operations, with­out intervention by a human operator during the run.

 

DEBUGGING -- The process of detecting and removing the errors in a computer program or a set of programs. Typically, errors are detected by trying to run a program with a series of transactions designed to test the main portions of the program, and observing the correctness of results.

 

[1984]

 

 

300-30

 

326 Glossary of terms. (cont'd)

 

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 system-

atically turning mes-

sages (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 repro-

grammed.

 

FEATURES -- Particular capabilities

or functions of a given

computer program.

 

[1984]

 

 

300-31

 

326 Glossary of terms. (cont’d)

 

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 19501s for

engineering and scien-

tific 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 differenti-

ated from "software" and

"firmware."

 

INTERPRETER -- A computer program in

the same general class

as "assembler" and

"compiler." All three

 

[1984]

 

300-32

 

326 Glossary of terms. (cont'd)

 

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 pro-

gram. This program

usually must be trans-

lated or changed (assem-

bled, compiled, inter-

preted) 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 program-

ming to assist the human

memory, e.g., an abbre-

viation 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 exe-

cutes. It has been

changed from the pro-

gramming language used

by the programmer by

means of an "assembler,"

"compiler," or "inter-

preter."

 

[1984]

 

300-34

326 Glossary of terms. (cont'd)

 

ROM (cont'd) -- execute faster; see also

above entry under FIRM-

WARE.

 

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 pro-

grams, procedures, and

possibly associated

documentation concerned

with the operation of a

data processing system,

e.g., compilers, library

routines, manuals, cir-

cuit diagrams. Con-

trasts with hardware.

 

SOURCE CODE -- This is the computer

program code as the

programmer originally

writes it, in the pro-

gramming 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.

 

[1984]

 

 

300-35

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-read-

able, 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 data

base has been previously published or regis-

tered, or is in the public domain, the claim

would be limited to the authorship involved in

the compilation. Where the data is substan-

tially or wholly new, the claim could include

additional text, compilation and revised text,

updates, or the like.

 

[END OF CHAPTER 300]

[1984]