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PART I: About Intellectual Property (cont'd)

WHAT IS A COPYRIGHT?

Unlike a patent, copyrights arise when a copyrightable work is created. It is up to the author to put the appropriate copyright notice on the work before it is published. The notice must appear on all copies in a conspicuous place, and it must include the symbol (??) or the word "copyright" or the abbreviation "copr.," the year the work was first published, and the name of the copyright owner.

A copyright gives an author exclusive rights to print, copy, distribute, transfer, and display the work for the lifetime of the author plus fifty years. Copyrights may be registered with the federal government in the U.S. Copyright Office. The steps involved in registering a copyright are similar to the steps to obtain a patent but much, much simpler in practice. Unlike the patent application, applications to register a copyright must be accompanied by a copy of the work.

To be eligible for copyright protection, a work must be original with the author, and it must be fixed in a tangible medium. Unlike inventors, the "author" of a copyrighted work may be the employer of the individual who actually created the work. This aspect of copyright law may seem peculiar to a scientist because it is contrary to the principle that reports containing scientific information bear the names of the individuals who discovered or reported the information.

Copyright protection includes only the form of expression used, not the ideas themselves. Thus, the owner of the copyright on a database owns the way the data is compiled, but not the data itself.

Under the Copyright Revision Act of 1976, which went into effect January 1, 1978, anything fixed in a tangible medium, including computer programs fixed in memory or on a disk, can receive copyright protection. However, the distinction between the expression of an idea and the idea itself raises interesting questions about what is protected in copyrighted software: Clearly, the programmer's expression is protected, and the process embodied is not, although, if it meets the other requirements for patentability, it may be patentable. But what does "the programmer's expression" include? Cases beginning to reach the courts on this point are holding that it includes far more than the mere sequence of commands employed, even though that view tends to protect the idea employed by the programmer. For example, one court has stated,

"The expression of the idea embodies in a computer program is protected by the copyright laws even though it must be altered and refined to be made adaptable to different types of computers that have different methods of responding to command controls and therefore require different source codes." This court believed that converting from one computer language into another is not comparable to translating a book from French into English, and concluded that a source code written in one computer language could infringe the copyright covering a source code written in an entirely different language.

Hypothetical Example

An amateur programmer (Jones) with substantial experience in the health field registered a copyright in the computer program HEALTHLAB. HEALTHLAB is written in BASIC and runs under MS-DOS on IBM and IBM-compatible machines of the AT type. A biomedical engineer (Smith) is an expert computer programmer. Smith learned that an enormous potential market for HEALTHLAB existed at sites possessing DEC VAX machines. Smith paid Jones $3,000 for a license to use HEALTHLAB on Smith's IBM AT machine. Because of the need to adapt HEALTHLAB to each application area, source code was provided. When Smith examined Jones' source code, it was apparent that a few simple involvements would improve the efficiency of the program. Using Jones' amateurish source code as a starting point, Smith transformed the improved program into source code written in "C". The new version, called LABHEALTH, runs nearly twice as fast as HEATHLAB on comparable hardware and costs a third less. LABHEALTH was sold to VAX installations like hotcakes. Jones, who was also thinking about creating a VAX version of HEALTHLAB, sued Smith for willful copyright violation. Smith argued that she created a new program in a different computer language and with improved algorithms. The court, however, held that Smith was liable to Jones because Smith took the expression of the idea in HEALTHLAB when she used it as the starting point of LABHEALTH. The court enjoined Smith from using or selling LABHEALTH, ordered all copies of LABHEALTH in Smith's possession confiscated, and ordered Smith to pay Jones all profits received from the sales of LABHEALTH.

The trend is clearly toward protecting the commercial investment that supported the software development by protecting the way programmers solve programming problems. Thus, programmers may not be free to use the "expression of ideas" embodied in complex programming techniques to create their own program in a different linguae, form, or sequence. One day, perhaps five to ten years from now, the question of whether this interpretation of copyright protection of software usurps rights reserved for patentable subject matter will be before the U.S. Supreme Court. In the meantime, we wait and see.

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