Protecting Your Trade Secret While Protecting Your Code with Copyright Registration

This post is about protecting the secrecy of your code while registering it with the US Copyright Office. Copyright.gov website provides useful information about copyright in general and the process of filing a copyright application in particular. Circular 61, available on the copyright.gov website, addresses copyright registrations of computer programs.

A copyright application contains three elements: (1) a completed application form, (2) a fee, and (3) a non-refundable deposit (a copy of the work being registered and “deposited” with the Copyright Office). The main concern that developers express is that the deposit requirement causes them to reveal their confidential source code.

Below is what developers should do, according to the Copyright Office:

For software without trade secrets, the registrant needs to submit the first 25 and last 25 pages of source code. If making an on-line application, the source code can be downloaded electronically, in a pdf format. If the entire source code is less than 50 pages long, you should send in the entire source code.

For software containing trade secrets, you need to submit a cover letter stating that the claim contains trade secrets, a page with copyright notice, if any, and the source code as described below:

For new software:

First 25 and last 25 pages of source code with portions containing trade secrets blocked out, OR

First 10 and last 10 pages of source code along, with no blocked out portions, OR

First 25 and last 25 pages of object code plus any 10 or more consecutive pages of source code, with no blocked-out portions, OR

If less than 50 pages, - entire source code with trade secret portions blocked out.

There are also rules applicable for revised computer programs.

Note that the blocked out portions must be proportionately less than the remaining material, and the visible portion must represent an appreciable amount of original computer code.

Finally, as Circular 61 points out, each subsequent version of the software should be registered separately. The first registration covers the entire software, whereas submissions with subsequent version – only the new or revised material.

Please note that the information in this blog is derived from Circular 61 published by the US Copyright Office and is not intended as legal advice.

This article is not a legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author, Arina Shulga.  Ms. Shulga is the founder of Shulga Law Firm, P.C., a New York-based boutique law firm specializing in advising individual and corporate clients on aspects of business, corporate, securities, and intellectual property law.