Copyright and Computer Code

Marc's post below mentions copyright and computer code and brings up some interesting points regarding the current state of copyright law. Section 102 of the copyright code states that copyright protection may be extended to:

"[O]riginal works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

On its face, the law may seem quite clear, however many years of case law has struggled with the exact meaning of "works of authorship." How, exactly, do we define "authorship"? Must a work contain a requisite amount of creativity to be granted protection? Perhaps we should only grant protection to works with particular aesthetic qualities? Should we grant protection to simple copies? Only to copies that required a significant amount of work to reproduce?

In the end, courts have been loath to provide a definition of authorship that contains judgments regarding aesthetic qualities, or a necessary amount of hard work. Instead, a work of authorship may be found in anything containing some 'minimal' degree of creativity.

"Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Id., § 1.08 [C] [1]" (Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 111 S.Ct. 1282 (March 27, 1991)).

So, with only a minimal amount of creativity satisfying requirements for copyright, how does that affect computer code? Could a single define statement contain a minimal spark of creativity such that it should be awarded copyright protection? How about a series of define statements?

Certainly, there isn't much creativity in a define statement. After all, define statement are selected to have obvious meaning to the uninformed reader - a define statement containing too much creativity would be quite worthless.

However, when a coder selects the names for a series of variables, even if largely informed by a set of standards and rules, isn't there that spark of creativity? A particular order and format must also be selected for displaying the variables. The selection of a particular word to describe a particular value requires some amount of creativity. Perhaps such selection and organization also communicates some information about the structure and functionality of the code? Further, the define statements may be interspersed with comments - all presumably containing the necessary spark of creativity.

On the other hand, how many different ways are there to write a series of define statements? The variable name and the code's structure are largely determined by the project at hand. In many cases, several programmers working independently would probably come up with the same series of statements. If that is the case, then the code may fall prey to the idea-expression exception for copyright protection. If any idea can only be presented in one particular way, such that any expression of the idea would result in the same particular expression, then it cannot be granted protection. A simple recipe for cooking is a great example of information that may be creative in its particular format and display, but will be denied protection because, in the end, there is only one way to write a recipe.

The question of the copyrightability of a series of define statements is difficult. Increasingly, the trend has been to extend copyright to just about everything. Would the courts stop at define statements?