Let’s Swap Copyright for Code

By: Christina M. Reger 

Loyola of Los Angeles Entertainment Law Review

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Under the 1976 Act, copyright commences the moment a work is “fixed in any tangible medium of expression.” However, certain privileges, including the right to sue for infringement, come only when a copyright owner registers the work with the United States Copyright Office and deposits a “complete” copy of the “best edition” with the Library of Congress. The deposit requirement provides for disclosure of the information contained in the work. In fact, even as early as the 1909 Copyright Act, the quid pro quo of federal copyright protection has been disclosure. Disclosure stimulates and encourages creativity by enabling other authors to create and develop new works. 

Additionally, disclosure promotes economic efficiency by building upon current works to create better, more efficient creations and processes.” Society, in return, receives a creative work that stimulates and promotes future works of greater efficiency. 

The 1980 amendments to the 1976 Act (“the 1980 amendments”) incorporated computer programs, comprised of both object code and source code, and classified them as literary works. Once something is classified as a literary work, it receives all of the benefits of copyright protection granted upon registration. 

However, the process for obtaining a copyright for computer programs significantly differs from that for all other literary works. Federal copyright protection for computer programs, both object and source code, is an anomaly within the provisions for obtaining federal protection. In essence, computer code personifies the “golden child” in the field of copyright law because computer code requires limited disclosure, yet receives the same privileges. 

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