copyrightable expression can never be based on an arbitrary formula. Instead, the regulation requires a "sufficient portion []" or description "so as to constitute a sufficient archival record of the deposit." 37 C.F.R. § 202.20(c)(2)(vi). Whether the identifying material for a particular test meets this standard will be determined on a case-by-case basis. In the vast majority of cases, the presence of copyrightable text or artwork will be readily apparent. However, if all of the copyrightable expression has been blocked out and only uncopyrightable elements remain, the registration specialist may refuse to register the test, even if the unblocked portions represent more than 50% of the text or artwork shown in the identifying material.
720.5 Secure Tests Administered through a Computer Program
If the secure test is administered through a computer program and if the claimant owns the copyright in that program, the applicant may register the program and the test with the same application, provided that the program is considered part of the test and provided that the applicant submits appropriate identifying material for the program. To register a secure test together with a computer program, the applicant should call the Literary Division at (202) 707-8250 for further instructions.
721 Computer Programs
This Section discusses the U.S. Copyright Office's practices and procedures for the examination of computer programs.
For a discussion of databases, see Section 727. For a discussion of websites and website content, see Chapter 1000. For a discussion of videogames, see Section 726 and Chapter 800, Section 807.7(A).
721.1 What Is a Computer Program?
The Copyright Act defines a "computer program" as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." 17 U.S.C. § 101. Congress added this definition to the statute "to make it explicit that computer programs, to the extent that they embody an author's original creation, are proper subject matter of copyright." National Commission on New Technological Uses of Copyrighted Works ("CONTU"), Final Report 1 (1979) (CONTU Report); see also 126 Cong. Rec. 29,895 (1980) (statement of Rep. Kastenmeier) (explaining that the legislation "eliminates confusion about the legal status of computer software by enacting the recommendations of [CONTU] clarifying the law of computer software").
A claim to copyright in a computer program may be based on the authorship "expressed in words, numbers, or other verbal or numerical symbols or indicia," regardless of whether that expression has been fixed in tapes, disks, cards, or any other tangible medium of expression. 17 U.S.C. § 101 (definition of "literary works"). However, the fixed program must be used directly or indirectly in a computer. For purposes of copyright registration, a "computer" is defined as a programmable electronic device that can store, retrieve, and process data that is input by a user through a user interface, and is capable of providing output through a display screen or other external output device, such as a printer. "Computers" include mainframes, desktops, laptops, tablets, and smart phones.
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