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ANNOUNCEMENT from the Copyright Office, Library of Congress, Washington, D.C ANNOUNCEMENT from the Copyright Office, Library of Congress, Washington, D.C. 20559 t PROPOSED RULEMAKnlG RIDISTRATION OF CLAIMS TO COPYRIGHl'; DEPOSIT REQtJImMENTS FOR CCMPUTER PRCGRAMS COOAINING TRADE SECREI'S The following excerpt is taken from Volume 51, Number 189 of the Federal Registrer for Tuesday, September 30, 1986 (pp.34667-34669) copyright registration of both published control of the Copyright Office to be and unpublished works requires a available for public inspection. As a U8RARYOFCONGRESS deposit of a copy, phonorecord. or other result of the public inspection COpyrIght 0ttIce material to identify the work for which requirement. some copyright claimants registration is sought and to permit have asserted that the deposit of 37CFR Pw1202 examination of the claim by the material containing trade secrets Copyright Office. in accordance with jeopardizes trade secret protection [Doell..No.IHAI section 410 of the Act. Except as under state law. No court. however. has provided by subsection (c) of section specifically ruled on this Issue. of CIIlIme to Copyrtght; J5:tIon 408, subsection (b) generally requires the On May 23. 1983. the Copyright Office Requlrementa for Computer ConUlInlng T....secnta deposit of one complete copy or published a Notice of Inquiry in the phonorecord in the case of an Federal R....t.r requesting public A••NCV: Library of Congress. Copyright unpublished work. or two complete comments on the deposit of material Office. copies or phonorecords of the best containing trade secrets. (48 FR 22951) ACTION: Proposed rulemaking. edition in the case of a published work. The notice summarized the statutory For works first published outside the framework of the deposit requirement IUIIIIAIIY: This notice of proposed United States. the Act requires deposit and discussed the special deposit rulemaking is iuued to infonn the public of one complete copy or phonorecord as provisions for secure tests and the that the Copyright Office of the Library so published. Subsection (c) of section of Congress is considering adoption of nature of trade secret protection. The 408 authorizes the Register to specify notice closed by posing twelve new relJU1ations amending the deposit administrative classes of works for requirements for Copyright registration questions of particular interest to the purposes of deposit and registration. to Copyright Office. of computer prosrams containing trade determine the nawn of the copies to be The Copyright Office received a total secrets. The amendments address deposited. and to permit or nquire the of 41 responses from the notice of concerns about the revelation of trade deposit of identifying materials in lieu of inquiry. The vast majority of the secrets through registration and public actual copies. inspection of deposit copies of computer In reliance on this authorization. the responses were from members of the programs. Copyright Office established regulations computer industry and the overwhelming sentiment was in favor of DATIl: Comments should be received on governing deposit for registration of or before December 1. 1988. claims to copyright at 37 CFR Ch. U establishing special deposit procedures to mitigate the alleged uncertainties ADDllUlII: Ten copies of written II 202.20and 202.21. Section 202.20 provides a number of modifications to associated with depositing in a public comments should be addressed. if sent office, material containing trade secrets. by mail to: Library of Congress. the deposit requirement in the case of Department D.S., Washington, DC 20540. certain works. Among the works having A number of the comments addressed If delivered by hand, copies should be special provisions are machine-readable public policy issues concerning the brought to: Office of the General works (1202.2O(c)(2J(vii)), and secure establishment of special deposit Counsel, U.S. Copyright Office, Library tests (1202.20(cJ(2)(viJ).1naddition. provisions. Several of the comments of Congress, Washington. DC 20559. section 202.20(d) estabUshed a exprelled the view that trade secret (202) 287~80. procedure for special relief in cases protection and copyright advance similar societal goals. and therefore it is """"MlNTAIIY INPOItIIATION: Under where the nonnally applicable deposit !ction 408of Title 17 of the United requirements pose an undue hardship. completely consistent to modify the deposit requirement in a way that would ates Code. the Copyright Act. Section 705(b) of the copyright law requires all deposits retained under the preserve trade secret protection fully. ML-357 The Association of American Publishers Practices was published in 1985, these representation of the authorship in a argued that the deposit requirement was three alternatives were listed at computer program. not intended to delineate the scope of a § 324.05(d]. In its comment. a law firm suggested copyright claim through public Frequently mentioned among the that the identifying ma terial include an disclosure, citing the Register's authority submitted comments was the proposal indication of the number of lines to determine the nature of deposited that the Copyright Office merely restrict contained in the program. The Copyrigh . material under section 408(c)(1) and. public access to deposits of computer Office believes it is useful to know the National Conference of Bar Examiners programs and other material containing size of the program which il registered. v. Multistate Legal Studies. Inc.• 692 trade secrets. The Copyright Office has In some cases the number of lines in the F.2d 478 (7th Cir. 1982), conceming 4' concluded that such an approach would program will be apparent from the deposit of secure tests. Only two clearly violate section 705(b) mandating identifying portions which are comments argued in favor of a deposit public inspection of deposits retained by deposited. In other cases the size of the that fully discloses and copyrightable the Copyright Office. As a result, this program will be unclear, The Copyright content of registered material. One proposal has not been adopted. Office wants to encourage applicants to asserted that public disclosure through Some comments contended that the provide information as to the size of the deposit requirements inhibited the program being registered. and has deposit was intended as a trade-off for proposed a modification in the receiving copyright protection, and the registration of computer programs. The authors of these comments. however. regulation requiring this disclosure, other argued owners of intellectual The Copyright Office also proposes property should elect either copyright may have been unaware of the extensive use of special relief in the modifying present regulation protection or trade secret protection. computer software area. Although 202,20(c)(2)(vii) to include alternative On the basis of the comments registrations for computer programs are deposits in the case of computer received. the Copyright Office has not separately tabulated, the Copyright programs containing trade secrets. It ill concluded that a case has not been Office estimates over 10,000 hoped that knowledge of these made for establishment of a broad registrations are made for computer altematives williesaen the demand for deposit exemption covering all material programs anually. The Copyright Office administratively burdensome special which could conceivably contain trade therefore concludes that the present relief. The three alternatives suggested secrets. Of the submitted comments. deposit requirements, as set forth in the in Compendium II of the Copyright only one came from outside of the regulations and Compendium IL do not Office Practices have been tested by computer industry. That comment came necessarily inhibit the registration of experience. and they adequately from a manufacturer of spare parts who computer programs. balance public record concerns with the argued that public inspection should be A controversial matter addressed by desires of applicants to withhold certain restricted on deposits of technical commentators was the subject of information. The Copyright Office rlrawings and specifications. depositing object code. As explained in additionally proposes a fourth On narrower grounds, however. the the Notice of Inquiry. the Copyright altemative specifically addressing small Copyright Office finds that particular Office has taken the position that the computer programs of 25 pages or less. problems of the computer industry do source code format of a copyright Finally, while the Copyright Office is merit special attention. Many in the program constitutes the best not now proposing any amendment of computer industry are concemed that representation of the authorship in the the existing "secure test" regulation (37· the availability of registered computer program for examining purposes. CFR 202.20(c)(2J(vi)). the Office hereby programs for public inspection in the Registration on the basis of an object gives notice that as part of the policy Copyright Office gravely jeopardizes code deposit is only considered under review of deposit requirements for trade secret protection. While no court the "rule of doubt" because authorship computer programs containing trade has directly addressed the issue, it is can not ordinarily be determined. A secrets. it is considering changes in the clear that computer programs are number of commentators criticized this procedures for processing secure tests valuable intellectual property whose policy. arguing that computer programs and
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