Lapas attēli
PDF
ePub

1. EXECUTIVE SUMMARY AND CONCLUSIONS

1.1 ORIGIN OF THIS STUDY

This study began in October, 1974, and has been sponsored by the Division of Science Information of the National Science Foundation. The problem seen at that time was that copyrighted works were being fixed in computer-readable media and the copyright law concerning the use of such works was unclear. The copyright law had not been fully revised since 1909, a time when the possibility of copies of literature fixed in media that would make the copies invisible to the unaided eye was unthinkable.

A major issue in 1974 and for several previous years was whether a copyright owner deserved compensation when his work was first encoded into electronic form, or for the time it continued to be stored, or only upon each instance of a hard-copy being created. In addition, a sense of urgency had been created at Congressional hearings in 1967 with predictions that in the near future, hard copy distribution of technical books and scientific journals would be replaced by a single copy, converted into computerized form, being replicated at hundreds, perhaps thousands of remote terminals. The implications for copyright owners were severe. As a result of those conditions, what was desired was a multi-disciplinary, "policy-oriented" study which would clarify the issues, including the issue of economically-sound, technical mechanisms in such automated systems that would enable reporting of the data on which royalties could be based.

However, the National Commission on New Technological Uses of Copyrighted Works (CONTU) was established at the very end of 1974, with the function of recommending to Congress changes in the copyright law with respect to uses of copyrighted works in conjunction with computers. In October, 1976, the General Revision of Copyright Law was enacted, which did much to clarify the rights of copyright owners to their works when fixed in any tangible medium, but did not finally resolve the issues of computer-readable works.

CONTU has not yet submitted its recommendations to Congress, and the copyright laws with respect to computer-readable works will remain ambiguous until Congress acts on those forthcoming recommendations.

This study analyzes the issues of copyright in computer-readable works and is pertinent to current policy considerations.

1.2 CONTENT OF THIS REPORT

The purpose of this report is to present the results of the study, and to recommend mechanisms that will maximize the long-term availability of computer-based information.

The subject of this study does not concern an activity in which there

is a comprehensive or coordinated investment program aimed at achieving a specific goal. Consequently, recommendations are not based on a quantification of benefits and a resulting cost-benefit comparison. In order to establish a firm basis for recommendations, basic principles of copyright have been surveyed; and an analysis has been made of the impact of information technology on copyright law as that technology has advanced during the twentieth century. In addition, fundamental concepts of economics have been reviewed to assure that recommendations are well-grounded in that discipline.

As an outcome of the evaluation of fundamentals, and of the historical analyses, it has been possible to enumerate a set of basic principles that are employed as the foundation of the recommendations. In addition, insights have been developed and conclusions drawn about the reduction of transaction costs, the impact of technological change and about the existing and expected mechanisms of policymaking in copyright. It is hoped that the recommendations and conclusions will be of value to decisionmakers, as well as to policy analysts and researchers. Certainly the findings, conclusions and recommendations of this report are not to be taken as the final, definitive view. Other analyses of the legal and historical precedents may reveal different interpretations and consequently different conclusions and recommendations. Additional contributions to the literature are welcomed.

1.3 FINDINGS OF BASIC PRINCIPLES

1. The concept of common law copyright conforms to the philosophy of the Enlightenment, enunciated by Locke, that each person has the right to the fruits of his creations.

2.

Due to the inherent rights in the copy, an intrinsic market failure results from the ease of copying or plagiarism of intellectual property. Correction of the failure requires the public good of statutory copyright protection.

3. The

4.

The principle of inherent ownership and consequent statutory protection do not imply a value judgment as to the relative merit of an individual work or the inherent right to financial remuneration. The economic value of a work is to be determined in the marketplace where copyright protects the distributors of intellectual works as well as the creators.

If free economic competition is possible, opportunities for it should be maximized, including opportunities for entry of new products and new competitors.

5. Copyright protection assumes the concept of the quid pro quo
of a social contract. The application of this concept requires
that in return for protection of law, the copyright holder
makes a public disclosure of his work.

1.4

6.

7.

The dissemination of scientific and technical information should be maximized, subject to resource constraints, excepting where such principles as personal privacy, trade secrecy and national security take precedence.

There would be transaction costs attached to any market, including the market for intellectual property, even if there were no copyright protection. The trade-off in structuring a market is in the kinds of transaction costs a society is willing to tolerate, as well as in the size of such costs. All other things being equal, the size of transaction costs should be minimized.

8. Decisionmaking on copyright involves the achievement of a balance of equities between user needs and owner rights that should include consideration of the general public as well. RECOMMENDATIONS FOR IMPLEMENTATION

1.4.1 Computer-Readable Data Bases

1.

2.

3.

Computer-readable data bases, whether compilations, collective works, or reference works of a single author should be copyrightable in any tangible medium of expression.

Complete disclosure of the contents of the data base to the Copyright Office should be required, in some tangible medium, when the data base is initially registered.

Deposit requirements for data-base updating should be satisfied by a yearly submission of a complete list of additions and deletions. At some multi-year interval, e.g. ten years, a complete re-disclosure should be made if the data base has been frequently updated.

4. Clarification of what constitutes publication of a data base is needed when a data base is distributed only in computer-readable form via a terminal query system through one or a very few specifically-licensed computer systems.

1.4.2 Computer Programs

1. A computer program written by a person in a source language, with or without the assistance of a computer, generically qualifies as a work of authorship. An original computer program should be copyrightable in source language in any tangible medium of expression. Machine (object) code should not qualify as a source language.

2.

Disclosure of the computer program upon copyright registration should be accompanied by definition and usage manuals for the computer language and dialect in which the program is written, if such information is not on file already with the Copyright

Office.

3. The transformation of a copyrighted computer program into object code from source language should be considered to be the making of a copy, even if the translation requires the implementation of some housekeeping functions such as the selection of peripheral units, storage allocation and the assignment of absolute addresses.

4.

5.

6.

7.

The translation of a copyrighted computer program into a completely different source language (not just a dialect or variant) should constitute the authorship of a derivative work.

The duration of copyright protection for computer programs should be no less than the duration of protection of other original works of authorship, in order to promote the use of computer languages that can be expected to endure regardless of changes in hardware technology.

Decisionmakers should be aware that assignment of computer programs to a particular category of copyrighted work forces the adoption of the limitations on exclusive rights already inherent in that category. For example, categorization of a computer program as a "literary work", rather than as a separate copyrightable category assigns to computer program users the exemptions to exclusive rights granted to users of literary works in Section 110 of the 1976 General Revision of Copyright Law.

The flowchart of a computer program ought to be separately
copyrightable as a pictorial work, but it ought not to be able
to employed to support an infringement charge against another
program that employs the same flowchart unless the flowchart is
sufficiently detailed so as to mirror the specific expression
of the original program.

1.4.3 Transfer of Ownership of Copies of Computer-Readable Works

1.

2.

Outright sale of computer-readable works, i.e. transfer of ownership of copies as distinguished from lease or rental with permissions, should be promoted so as to reduce transaction costs.

In order to effectively use a copyrighted computer-readable work, an owner of a copy should have the right to make and retain additional copies for his internal use (which would have to be destroyed when and if he resold the work), and should have the right to use a copy in a computer. The right of internal use should not include the right to make the work available to outsiders via a computer network or otherwise. The assignment of usage rights to purchasers should not prevent

« iepriekšējāTurpināt »