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some began to envision a wider market for software products, a public dialogue began to develop about what kinds of proprietary rights were or should be available for computer programs. The industry had trade secrecy and licensing protection, but some thought more legal protection might be needed.

Phase 2: Mid-1960s and 1970s

Copyright law was one existing intellectual property system into which some in the mid-1960s thought computer programs might potentially fit. Copyright had a number of potential advantages for software: it could provide a relatively long term of protection against unauthorized copying based on a minimal showing of creativity and a simple, inexpensive registration process.1 Copyright would protect the work's ''expression," but not the "ideas" it contained. Others would be free to use the same ideas in other software, or to develop independently the same or a similar work. All that would be forbidden was the copying of expression from the first author's work.

In 1964, the U.S. Copyright Office considered whether to begin accepting registration of computer programs as copyrightable writings. It decided to do so, but only under its "rule of doubt" and then only on condition that a full text of the program be deposited with the office, which would be available for public review.2

The Copyright Office's doubt about the copyrightability of programs


Under the federal copyright statute in effect in 1964, the law was mainly used to protect published works from unauthorized copying and distribution. Protection lasted 28 years, but could be renewed for an additional 28 years. After that, the work could be freely copied. Upon publication, a copyright notice had to appear on each copy of the work (or else the work would be considered to have been dedicated to the public domain). The author would generally register the work with the Copyright Office upon publication. The Copyright Office would give the work a cursory examination to determine that it met copyright's modest substantive standards. After this examination, and upon payment of a modest fee, the office would issue a certificate of registration. Unpublished works were generally protected by state law. Under the Copyright Act of 1976, the rights of copyright attach to original works of authorship from the moment of their first fixation in a tangible medium and last for the life of the author plus 50 years. Registration with the Copyright Office remains a simple inexpensive process; registration is necessary to bring an action for copyright infringement, but not for rights to attach. See 17 U.S.C. sec. 101 et seq. (1988), and 17 U.S.C. sec. I et seq. (superseded).


See Samuelson, CONTU revisited: The case against copyright protection for computer programs in machine-readable form, 1984 Duke L.J. 663 (1984). The Copyright Office will deny registration to works that are clearly uncopyrightable but, on occasion, will register works about whose "copyrightability" the office has some doubt, leaving to the courts the ultimate question as to whether the work qualifies for copyright protection. The registration certificate issued for such a work will reflect that its issuance was under the rule of doubt.

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