Re: mechanics of website COPR applications

I agree with Bernard Gerdelman that Circular 61 is rather confusing about the best approach to take in trying to register copyright in screen displays. There's a bit of history behind this confusion. It's safe to say that when the CO began allowing registration of computer programs as textual works in 1964 under the "rule of doubt" and even when Congress extended explicit copyright protection to computer programs by adopting CONTU's recommendations and amending the Copyright Act in 1980, the notion of protection of screen displays had not been given much serious thought. In the first batch of cases in the 80's concerning screen displays -- Broderbund, Digital Communications (Crosstalk) -- the plaintiffs had obtained separate VA registrations on the displays, and the courts relied on those registrations in granting protection. This, in turn, was due in substantial part to the reasoning in still earlier cases involving videogames. But there were conceptual problems with this approach -- the screen displays could not really be distinguished from the code for authorship purposes, because the code is what caused the screen displays to appear; and the screen displays were arguably "fixed" only in the code. In addition, the CO has long had a general policy called the "single registration" rule, under which all copyrightable expression in a single work should be registrable in a single registration.

The logic of this led to the current practice of allowing registration of screen displays along with the underlying code in a single filing, which was first publicly announced in June 1988. But the CO at the time was highly skeptical of the copyrightability of the screen displays of the popular DOS-based programs of that time -- which were largely textual in nature -- most prominently, perhaps, the Lotus 1-2-3 spreadsheet program, which was the subject of ongoing litigation in which the CO had some interest. The General Counsel of the CO at that time, Dorothy Schrader, was pretty much dead set against the copyrightability of menus and menu structures, and there was some concern that the new single registration rule might suggest to the courts that the CO was affirmatively declaring that all screen displays were copyrightable. The optional deposit of screen displays gave the CO a chance to look at them and, presumably, to reject those it found to be uncopyrightable. Now why anyone would make the optional deposit was hard to figure, since you could get the registration without making it, and therefore obtain the benefit of the presumption of validity -- or at least get to court without a negative pronouncement from the CO -- but perhaps the CO thought that some courts would give more weight to a registration that had passed CO review, and this would incent people to go that route. Indeed, it appeared at the time that there was something of an institutional desire on the part of the CO to expand the significance of its review process, which was fairly well checked by the Atari v. Oman case, decided at around the same time. (I won't go further into the subject of the limited nature of CO review and the judicial effect of its review or lack thereof; we discussed it on this list a while ago if anyone wants to dig it out. I'll just point out CO review is not substantive, unlike Patent Office review of patent applications, and is supposed to be confined to determining whether the work constitutes copyrightable subject matter.)

Frankly, in my opinion, the CO was just making it up as it went along during that period of uncertainty. When I tried to make a separate VA registration (supplementing an earlier TX registration) for the Lotus 1-2-3 menu screens just before the commencement of the so-called
"look and feel" case, Lotus v. Paperback, following the precedent of
the Broderbund decision, I got a letter back on January 20, 1987, saying: "It is the position of the Copyright Office that textual screen displays embodied within the computer program that generates them are covered by the registration for the program, without either the need or justification for separate registration for the displays. Because the displays are considered to be an integral part of the program, the authorship in the displays appears to be the same as that contained in the program." I was informed that the CO was therefore "filing the applications without further action." This was long before the formal policy was announced or any public statement of the "position of the Copyright Office" had been made, and of course our adversaries tried to make some hay out of it in the litigation, and of course the CO wouldn't explain itself further just for our private purposes. Then, even after the formal policy was in place, you'd get letters like this, sent in June 1989 in response to an application to register the screen displays of a game called Spaceman:
"Our examination of the videotapes of each work [this was before the
CO had the ability to take deposits on disk!] revealed some menu screens which we would not consider registrable. Other screens contained copyrightable material. Registration was completed and, of course, the entire videotape is part of the deposit since it was submitted as a collection. We point out, however, that not all of the individual screens would be registrable if submitted separately." Not much meat for anyone to chew on in that! But the CO was given an opportunity to make the point that not all screen displays were, in its view, copyrightable, which was all they really wanted to achieve, in my opinion. As to which particular screens were protected, the CO basically was saying, let the courts figure it out -- as they historically have done.

To cut to the chase, I think the language of Circular 61 is an artifact of the confusion about how to treat screens vs. code that arose in the late 80's and the battle over protection of menu screens circa 1987-1995, that effectively ended with a whimper with a tie vote in the Supreme Court in Lotus v. Borland. It has not been revisited since that time and clearly is not written with Internet/web/HTML issues in mind. I freely confess I don't have any recent practical experience in registering such types of works, and I'm curious myself to know more about how people are handling this and what kinds of responses they're getting from the CO. I toss this comment in, however, hoping that some background may help to put the current policy in context.

Kerry L. Konrad
<k_konrad[_at_]stblaw.com> Received on Thu Aug 26 1999 - 18:28:14 GMT