Software copyrights continue to be an important intellectual property for many companies. Such prominence can be seen by several recent cases pertaining to software copyrights. For example, a recent verdict against Oculus VR, a Facebook subsidiary, for $500 million in damages included claims of copyright infringement of video game developer ZeniMax Media's software. Hewlett Packard Enterprise Co. (HP) is facing a claim for vicarious copyright infringement asserted by Oracle alleging that HP support companies distributed copyrighted Oracle code without its permission. With the prominence of ensuring a company's copyrights are adequately protected, there is renewed focus by the legislature to address any oversight in the Copyright Act pertaining to software. More specifically, the issue of ownership rights to copyrighted materials, especially when created by independent software developers, is an issue that may be interpreted differently by the Federal Circuit courts. Therefore, it may be time for Congress to clarify this issue by amending the work for hire doctrine as defined in the U.S. Copyright Act.

Copyright Act

Under the U.S. Copyright Act, authors of a copyrighted work have exclusive rights to reproduce, prepare derivative works, distribute, and publicly perform, display or perform the copyrighted works they create. However, at times, ownership rights to copyrighted works are not vested in the original author. The Copyright Act enumerates specific categories when, absent a separate agreement, ownership rights to copyrighted works may be automatically vested to a party other than the original author (better known as the work for hire doctrine). Under 17 U.S.C. Section 101 of the Copyright Act, a work for hire is: a work prepared by an employee within the scope of his employment would be owned by the employer; and a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.