How To Protect Trade Secret Information In Computer Programs When Seeking Copyright Registration

Mark A. Wright
Director and Chair, Intellectual Property Practice Group
January 1, 2000

Have you considered seeking a copyright registration for your computer program but had concerns about disclosing source code that contains trade secret information to the Copyright Office? If so, there is a way to register the copyright and protect the trade secret elements by providing alternative deposit materials to the Copyright Office.

When registering a copyright with the U.S. Copyright Office, an applicant must include deposit material (copies of the work), which material is then made part of the public record. With respect to entirely new computer programs, this generally means submitting the first and last twenty-five pages of the source code reproduced in a form visually perceptible without the aid of a machine or device. If an entirely new computer program is less than fifty pages, a visually perceptible copy of the entire source code is generally required as the deposit material.

Where a computer program contains trade secret material, however, the U.S. Copyright Office may allow a “special relief request.” Such a request can generally be made by a cover letter explaining that the source code contains trade secrets and proposing an alternative form of deposit. The applicant must file the proper copyright application, requisite filing fee for each program, the page containing the copyright notice, if any, plus the modified deposit requirement.

With respect to entirely new computer programs which contain trade secrets, the Copyright Office generally allows one of the following modified deposit requirements:

  • The first twenty-five and last twenty-five pages of source code with the portions containing trade secrets blocked out; or
  • The first ten and last ten pages of source code alone, with no blocked out portions; or
  • The first twenty-five and last twenty-five pages of object code plus any ten or more consecutive pages of source code, with no blocked out portions; or
  • For programs fifty pages or less in length, the entire source code with trade secret portions blocked out.

In submitting blocked out portions of source code, the blocked out portions must be proportionately less than the material remaining and the visible portion must represent an appreciable amount of original computer code. Separate rules exist for revised computer programs.

It is therefore possible to obtain the benefits of registering a copyright while protecting trade secret information in a computer program. Applicants should carefully review their computer programs to ascertain if they contain trade secret information and, if so, should consider redacting such material and submitting an alternative deposit requirement to the U.S. Copyright Office.