Derivate Works and Software

Derivate Works and Software

In a global gig-economy, software, applications, and cloud-based computing are becoming more and more important. One of the best ways to protect your proprietary software is copyright law.

On one hand, U.S. Copyright law provides you with enumerated rights against infringing parties to protect an original software creation against willful and malicious infringement or unauthorized derivative works. On the other hand, your newly developed software may inadvertently create a derivative work that infringes someone else’s software copyright. 

Section 101 of the Copyright Act defines a computer program as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 

Some different types of copyrightable computer programs include, but may not be limited to:

  • HTML
  • Deposits and trade secrets
  • Derivative computer programs
  • CD-ROMs
  • Computer screen displays
  • User manuals
  • Video games
  • Object code

However, Section 102(b) notes that copyrights do not extend to: “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

When federal courts consider copyright infringement for software, they must be careful not to extend copyright protection to un-copyrightable elements (i.e. ideas). 

Derivative Works & Software

Derivative works are new, original works based upon one or more existing works. In software and computer programs, this includes lines of code. Creating a software derivative work involves modifying the source code of an existing computer program either by revising it or translating it into another computer language. Simply linking to the existing original code in a library program without modifying it does not create a derivative work. Using a plug-in or a device driver also does not create a derivative work, even if you look at the program’s source code to determine how to use the plug-in or device driver.

Computer code is complex and creating a derivative work extends beyond copying a large portion of the original source code. A derivative work may use the code’s structure, organization, sequence, or architecture rather than a literal source code copy. If you are the owner of the original work, you can make as many derivative works from it as you wish, or you can give someone else permission to make derivative works. If you give someone permission to make derivative works, you can rescind that permission, but you cannot prohibit them from using any of his or her lawfully created derivative works.

Those who use free open source software should be concerned that they may inadvertently create a derivative work. Doing so may put their software under the open source license. If you modify the code of a program licensed under a General Public License or an Open Software License, you must adhere to the reciprocity agreement in these licenses and publish the source code of your derivative work. 

Protect Your Software

The Brown & Blaier, PC is dedicated to providing your business, and IP, with genuine legal counsel. You can focus on developing your business and software, while we focus on protecting your intellectual property.

Call Brown & Blaier, PC at (732) 490-8200 or contact us online to learn how we can help your business domestically or internationally, today.

Adam Blaier, Esq.


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