By John Richards [1]

Until the late Twentieth Century, copyright was not regarded as being of much relevance to the sale of products other than traditionally “artistic” products such as books and gramophone records. Today, however, in addition to these traditional areas, copyright 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 paper, we shall consider the application of the Copyright Act to computer software.

The U.S. Copyright statute provides copyright protection for original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. [2]

Subject to certain provisions relating to “fair use,” discussed below, the Copyright Act gives the copyright owner exclusive rights over the reproduction, preparation of derivative works, distribution [3] and public performance and display of the copyrighted work. Since the passage of the Computer Software Rental Amendments Act in 1990, [4] it has also been an infringement in copyright to distribute a computer program (including any tape, disk or other medium embodying such a program) for direct or indirect commercial advantage by way of rental, lease or lending.

It is not necessary to take any particular steps once a work has been created and “fixed in tangible form” for copyright to exist, although as noted above in many cases it will be necessary to register a copyright in a work before one can proceed with an action for infringement of it. Once it exists, for works created after January 1, 1978, copyright in general lasts for a period of seventy years from the death of the author, or in the case of joint works from the death of the last-to-die of the authors of the work. In the case of works made for hire, however, protection runs for a period of ninety-five years from publication or one hundred and twenty years from its creation, whichever comes first. [5]