The Copyright Office recently put out its final Practice and Procedure Manual for examinations of applications in literary, artistic, musical, cinematograph film and sound recording works (See). This publication comes after the draft guidelines were put up for public notice and comment earlier this year.
The Manual details how different types of applications will be handled. We put together the information on computer programmes, databases, websites, and apps, below (See):
1. Computer programmes
Section 2 (ffc) of the Copyright Act defines “computer programme” to mean a set of instructions expressed in words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Computer programmes may be coyright-protected as literary works, if they meet these requirements. An application for registering computer programmes must be made under “Software Category (Not Literary Category)” (Rule 69 (1), Part VI), and must be accompanied by the source and object code. (Rule 70 (5)).
In the application for a computer programme, the “Class” of the work is to be mentioned as “Software or Computer Programme”. The language which is used in the creation of the work refers to the programming language used in the work, e.g. C++, Java. etc. Every application should be accompanied by two copies of source code and object code, both provided in digital medium, i.e. machine readable format and not in written or text form on paper.
2. Tables and Compilations including Computer Databases are not specifically defined under the law, but may be copyrightable as literary works. The general principle that the examination process will look to determine is that for a table or compilation, including computer databases, the work must exhibit some creativity or originality in the selection or arrangement of contents. As per the Manual, if the labour and skill required to make the selection and to compile the tables which form its items is negligible then no copyright can subsists in it. (GA Cramp & Sons Ltd v. Frank Smythsons (1944) AC 329)
The Manual goes on to discuss the “notion of originality of compilations”. In summary, it states that a compilation cannot be said to possess originality in the same sense as genuine literary works. But compilations are entitled to copyright protection for literary works, since they are referred to as collections in the Berne Convention. The test for originality, in such cases, is the grounds for the selection and arrangement of the material used to compile the final work. According to the Manual, the author of a compilation does not really create anything new, but merely selects and arranges prior work. In such cases, copyright protection is only provided for the new original literary work of authorship and not to the work as a whole.
According to the Manual, a website usually consists of different parts which may be independently copyrightable subject matter that falls within any one of the classes of works under Section 13 ofCopyright Act, 1957. Therefore, the component parts of websites can be in different form of digital files such as text, tables, computer programmes, compilations including computer databases (“literary works”); photographs, paintings, diagram, map, chart or plan (“artistic works”); works consisting of music and including graphical notation of such work (“musical works”); “sound recordings” and “cinematograph films”. A website as a whole is not subject to copyright protection.
The Manual specifically deals with copyright protection for applications, or “apps”, for short. The Manual identifies an App as “a complete, self-contained computer program that is designed to perform specific tasks”. They appear in many types, and usually have primarily dynamic content and are designed for user interaction. They include applications used directly or indirectly in a computer or electronic devices.
Ordinarily, an application may be registered as a computer programme under literary works, following the same process as for a computer programme.
Mere snapshots of screen displays of an application are not eligible for copyright protection, but screen displays that are generated by a computer programme are protected, subject to meeting certain requirements. The Manual specifically mentions that the registration will cover any screen displays generated by a programme, provided that the computer programme (code) generating the screen display is submitted by the applicant. In such cases, the owner of the computer programme and that of the screen display should be the same.