XV. Software and copyright

The basic rule in a government laboratory is that any copyrightable materials developed by a government employee while performing his/her normal duties cannot be copyrighted by anyone. [17 USC 105, see Samuels, 1993] There is legislation pending as of this writing, however, that would permit a company to copyright such materials if they were developed under a Cooperative R&D Agreement with the Federal Laboratory. And, of course, there is the possibility that a company might want to alter, improve, or make more friendly any software developed, in which case, the material developed or changed by the company would be copyrightable by the company. In practice, this situation can sometimes make the entire software package copyrightable by the company.

With regard to software, all software is copyrightable (except as stated above), but there are certain types of software that are also patentable. For example, any software that drives or controls hardware may be patentable. In addition, any software that causes special things to happen on the computer screen may also be patentable. This area is one that is a specialty within patent law and generally requires a qualified patent attorney specializing in software patents to give a definitive opinion. A simple example of patentable software in our own labs is the software that controls our robot (DeVAR). Another example of patentable software is that which is used to call up and manipulate the picture symbols in our computerized visual communication system (C-VIC) for aphasic patients (later licensed, patented, improved, and renamed Lingraphica by the manufacturer).

It should also be mentioned that copyrightable materials unrelated to official duties and developed off-duty by government personnel, without the use of any government materials or facilities, are copyrightable by the individual employee (such as a novel, poetry, recipe, or music).