Intersection between Copyright and Trade Secret Protection

Computer source code is at the Intersection of Copyright and Trade Secret Protection

Computer Source code can be protected as a copyrighted work, a patentable invention and a trade secret. However, there is an intersection between copyright and trade secret protection which can cause you to loose your intellectual property rights.

There is an intersection between copyright and trade secret protection.  Software is protectable as a patentable invention, a trade secret and a copyrighted work.  Computer code may represent a patentable invention. It is also considered a copyrightable work of art.  Computer source code is also protectable as a trade secret under various state and federal trade secret laws.  However, if you are not careful you can unwittingly give up your right to enforce your computer source code rights if you are not careful.

Based on the recent US Supreme Court ruling, you must register your copyright before enforcing it. Fourth Estate Public Benefit Corp. v., LLC.  However, registering your computer code as an invention or for copyright, may destroy trade secret protection.  This was the recent issue in the Capricorn Mgm’t Sys., Inc. v. Gov’t Emps. Ins. Co. et al. (GEICO) case.

Copyrighting Software

Copyright grants exclusive rights the author of an original work.  These rights include the exclusive right to copy, distribute, publicly display, perform and make derivative works.  Copyrights protect the original expression, not the ideas, processes, formulas or methods.  If you write a book, copyright law protects against someone who copies what you wrote.

Trade Secret Protection

Trade Secret laws provide protection for information which is secret and which has independent economic value by not being known. This protection can extend to formulas, recipes, algorithms, processes, techniques, methods, programs, financial data, business plans, know how, future projections, training or a list of actual or potential suppliers or customers.  To qualify, the trade secret must have value by being a secret.  It is not enough that the information was just a secret. Trade secret protection does not prevent someone from recreating the secret.  For example, someone can reverse engineer a process or recipe.   While they can’t just take your secret, they can experiment and recreate it.

To obtain trade secret protection, there is no registration requirement like in patent and copyright law.  You just have to keep it secret.  If the secret does get out, without any wrongdoing, then the cat is out of the bag.  Once the information is no longer a secret, there is no trade secret protection.

The Intersection between Copyright and Trade Secret Protection

When filing for a copyright or a patent, you have an obligation to essentially transfer information about the invention or copyrighted work to the public.  After the term of the patent or copyright application is exhausted, this information becomes part of the public domain. Free for anyone to use. As part of the application for a patent or copyright, this information is provided.  However, if this information includes the trade secret information, then the information is now longer secret and you have donated the trade secret to the public.  In Capricorn v. GEICO, the plaintiff filed a copyright application for computer source code which included code for what was alleged to have been a trade secret. Based on the plaintiff’s failure to properly identify the code as including a trade secret, the court ruled that the plaintiff had lost its trade secret protection.

Of note, the copyright office permits the owners of a trade secret computer code to submit only portions of their code or to submit code with the trade secret portions removed.

If you have questions about the intersection between copyright and trade secret protection, please contact us to speak with an attorney familiar with the intersection of patents, copyrights and trade secrets.