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11 with the Copyright Office. For example, the Wall Street rectly in a computer in order to bring about a certain Journal Online made a single registration for all up- result."115 Computer programs are literary works under dates from April 2009 through June 2009.111 The the copyright laws,116 and audiovisual works are sepa- method of registration is also the method used by rately copyrightable as well.117 NYMEX to register its databases.112 As noted by the Fourth Circuit, the Copyright Act Registering a database or an update to a database "`makes clear that the expression adopted by the pro- does not assure that any real-time data therein would grammer is the copyrightable element in a computer be protected by copyright. As the Feist Court stated, program, and...the actual processes or methods embod- "[n]otwithstanding a valid copyright, a subsequent ied in the program are not within the scope of the copy- compiler remains free to use the facts contained in an- right law.'"118 Because "the Copyright Act contains no other's publication to aid in preparing a competing explicit standards for separating a work's expression 119 work, so long as the competing work does not feature from its underlying ideas," it is necessary to "sepa- the same selection and arrangement."113 rate[e] protectable expression of ideas in a disputed program from unprotectable ideas, facts, processes, and Guidance Number 5 methods of operation."120 If a work is copyrightable as an automatic database, Although ideas may not be copyrightable, a com- updates could be registered with the Copyright Office, puter program that expresses an idea by way of a com- but the update must contain copyrightable subject mat- puter device or machine brings the expression within ter. An automatic database may have little beneficial or the standard of communications that are copyright- 121 practical value for a transit agency. The underlying able. Although there are elements of a computer pro- data still could be copied without violating the copy- gram that are not copyrightable as ideas, it has been right. A transit agency's terms of use, end-user license, held that the rule against the copyrighting of ideas does or other agreement may be the best and possibly only not prevent an entire computer program from being 122 protection for its real-time data. copyrightable. In Apple Computer, Inc. v. Franklin Computer Corp.,123 the Third Circuit held that computer II. COPYRIGHT OF COMPUTER PROGRAMS FOR programs are not to be denied copyrightability on the THE COLLECTION AND DISSEMINATION OF basis of their being a "process," a "system," or a "method REAL-TIME DATA of operation" that is not copyrightable.124 B. Copyright of Audiovisual Programs A. Applicability of the Copyright Act to Computer Separate copyrights may be issued for an audiovis- Programs ual program and for the computer program that imple- The Copyright Act applies to computer programs be- ments the audiovisual program.125 A copyright may pro- cause of a 1980 amendment to the Act that "include[ed] tect a computer program that implements the in the definitional section of copyrightable subject mat- audiovisual component.126 It has been held "that a copy- ter a definition of `computer program.'"114 Under the right in the audiovisual display, which display is cre- Copyright Act, a computer program is defined as "a set ated by a computer program, protects not only the of statements or instructions to be used directly or indi- audiovisual from copying, but also the underlying com- puter program to the extent the program embodies the 111 The Wall Street Journal Online; published updates from Apr. 1, 2009, to June 30, 2009; representative publication date, Apr. 1, 2009; updated continuously. Registration number and 115 17 U.S.C. 101 (2009). date: TX0006978934/2009-07-22. 116 112 Whelan Assocs., Inc., 797 F.2d at 1234 (citing H.R. REP. Group registration for automated database titled NO. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S. CODE NYMEX Database; published updates from Apr. 1, 2007, to CONG. & ADM. NEWS 5659, 5667). June 30, 2007. Registration Number/Date: TX0006935449/ 117 2008-04-02. However, the last such database registration made M. Kramer Manuf. Co., 783 F.2d at 435 n.12. 118 by NYMEX appears to have occurred in 2007. Id. at 43435 (quoting 1976 U.S. CODE CONG. & ADM. 113 Feist Publ'ns, Inc., 499 U.S. at 349. NEWS at 5670) (emphasis in original)). See also Annotation, 114 Copyright Protection of Computer Programs, 180 A.L.R. FED. 1 M. Kramer Manuf. Co. v. Andrews, 783 F.2d 421, 432 (2002). (4th Cir. 1986) (footnote omitted); 1 NIMMER ON COPYRIGHT, 119 supra note 19, 2.04 [C][3], at 2-51 (stating that "[i]t is...firmly Annotation, Copyright Protection of Computer Programs, established that computer programs qualify as [a] work of au- 180 A.L.R. FED. at 19 2[a]. 120 thorship" subject to copyright protection); Brignoli v. Balch Id. 121 Hardy and Scheinman, Inc., 645 F. Supp. 1201, 1204 (S.D.N.Y. M. Kramer Mfg. Co., Inc., 783 F.2d at 435. 1986) (stating that "[t]he great weight of authority indicates 122 Brignoli, 645 F. Supp. at 1204. that computer programs are entitled to protection under copy- 123 714 F.2d 1240 (3d Cir. 1983). right law"), (citing Videotronics, Inc. v. Bend Elects., 564 F. 124 Supp. 1471, 1477 (D. Nev. 1983); Williams Elects., Inc. v. Artic Id. at 125051. 125 Int'l, Inc., 685 F.2d 870, 875 (3d Cir. 1982); Apple Computer, M. Kramer Manuf. Co., 783 F.2d at 441. 126 Inc. v. Formula Int'l, Inc., 562 F. Supp. 775 (C.D. Cal. 1983). Id. (citation omitted).