The argument could be made that only the printouts have been published and the data base has not been published. After all, only the printouts have changed hands; and it is assumed here that the proprietor or his exclusive licensee have retained control of the full data base. In the manner in which data base systems are operated, a user identifies a particular set of categories of information in which he is interested and queries the data base. The data base system responds with the number of items in the set, and on command, the text retrieved is shown on a CRT terminal. If the user is satisfied with the text retrieved, he requests a printout. It would seem that the printout is a "derivative work," similar to an abridgment or condensation (see Section 101 for definition), and there appears to be no requirement that a published derivative work be based on a published preexisting work. On the other hand, each printout may be different, depending on the specific query which the user has entered into the computer. Thus, the published "derivative works" may be one of a kind.

5.6.1.4 Needed Clarification: It seems reasonable to suggest that a clarification of what constitutes publication of a computer-readable data base is in order. For example, a reasonable understanding is that a computer-readable data base is to be considered "published" in its entirety if it is offered to the public on a query basis such that any item in the data base is capable of being retrieved and printed out and the printouts become the physical property of the users on the basis of unrestricted disclosure. Furthermore, "publication" occurs in this situation whether the offering to users is made by the proprietor or his licensee.

Additional clarification appears to be needed, also, in the definition of how many persons constitute "a group of persons" as the number of distributors to whom a work has to be offered in order to be published. Furthermore, it does not seem to be clear if a work is "published" if it is offered to a group of persons on a restricted-disclosure basis for further distribution on a restricted-disclosure basis.

5.6.2 Statutory Deposit to the Library of Congress

As was indicated in Section 5.5 above, there are valid public policy considerations that suggest the maximum disclosure of copyrighted works in return for copyright protection. There is no reason to exempt computer-readable data bases from these considerations.

The Library of Congress could be viewed in this connection as an archival location where anyone could view and peruse nearly any computerreadable work published with copyright notice. notice. This would be an immense aid to scholarship, to historical review, and to the generation of new ideas for the future, as it has been with works in the older technological media.

The issue, then, is the form in which computer-readable data bases should be deposited under Section 407 in order to maximize their

availability, minimize storage and handling problems for the Library, not provide a hardship of supply to the proprietors and not strain fair

use.

It is not immediately clear, on these criteria, whether the initial deposit should be a printout or a magnetic tape, but it seems reasonable to suggest that it should be the complete data base, not just identifying descriptions, regardless of which medium is chosen. The advantage of the printout is that any reader could peruse it without straining fair use. Microfilm could be used to reduce size and bulkiness. The advantage of the magnetic tape is that the data base is published in that medium; and it is a medium in which it is available for a scholar's manipulation and use, assuming it were an outdated tape that the proprietor no longer saw as an immediately marketable product that the scholar ought to buy by signing on the proprietor's computer system.

Many data bases are updated frequently, and it seems reasonable to suggest that a yearly update, containing only the new material added during the preceding year and the old material dropped, is not a burdensome requirement. The deposit of a complete data base, under the circumstances of continuous updating, could conceivably be required at least once in a period of several years, for example, ten.

5.6.3 The Question of Monopoly

In Section 4.7 of this report, the question of monopoly was discussed, and it was noted that the existence of an economic monopoly depends on the availability of substitutable works. In works produced for the general consumer, there may be high substitutability among individual works.

However, an important distinction must be noted between the respective market behaviors of the general consumer and the researcher-consumer of copyrighted works. The general consumer typically selects competitively for purchase or use one (or a few) of a class of relatively substitutable works while rejecting all others. The researcher in any professional field desires to be comprehensive in the full-text as well as in the data base literature of his field. Thus, the researcher (or his library surrogate) cannot reject totally anything pertinent, and his marketplace behavior with respect to competitive producers cannot be analogous to the general consumer. The question may be asked whether there is a greater potential for a market monopoly in this situation. If such is the case, a question that may be asked is what form of intervention should be pursued by consumers collectively or by the Government. With respect to scientific journal articles, the situation is ameliorated through the formation of professional societies which serve as the collective good to circumvent the implicit market failure. Furthermore, the social ethic of research is that all those involved, even in different organizations, benefit from the unimpeded flow of information.

This ethic may tend to lower the prices of journals produced by scientific societies rather than raise them. Therefore, any independent entrepreneur of a proprietary journal may find that the subscription prices that can be charged are limited by competition from journals of non-profit societies. The fact that the primary producer community and the final user community of scientific journal articles are essentially the same population may be a key factor in preventing monopoly pricing. With respect to bibliographic and other specialized data bases, a different situation exists. In contrast to the situation with scientific journal articles, there is very little in the publication of continual updates of a data base that can be translated by a professional researcher into either financial or symbolic remuneration unless the work is a full-time business. Thus the producer and consumer communities need not be the same population and this particular negative feedback restraint on the subscription price of journals need not hold for data bases. It is not surprising, therefore, to find that (excluding Government production) a significant fraction of data bases used for research purposes are produced and distributed for profit as proprietary products.

The development of computer-based information retrieval systems based on machine-readable data bases has added an additional complicating factor. First, the development of a computer-readable data base (with continual updating to insure an indefinite life) requires a certain investment in data collection, organization, manipulation, and digital conversion. Clearly, those organizations that already have computeraided publishing systems to help produce hard-copy informational products may be able to generate computer-readable data bases as relatively inexpensive by-products. Secondly, a parameter of usefulness of a data base is the comprehensiveness of its coverage of a specific field; and conceivably, only the largest organization with well-established lines of data supply and customer acceptance may be able to satisfy this need. Thus, the possibility exists that in some field of research, by virtue of economy of scale, an established system of suppliers and customers and already amortized costs of entry in the market, a single organization may achieve a virtual market monopoly over a class of nonsubstitutable computer-readable data bases. An anti-trust suit concerning this very problem is now under litigation in the field of computer-based legal information retrieval.

Additional sources of monopoly control and a potential solution are described in Appendix A, Section A.4.4.5 of this report. The following is excerpted from that Section:

"In some instances, publishers of data bases have leased them
exclusively for use in one computerized information service
system. . . Exclusive licensing of data bases may tend to
foster the monopolization of data base search services by one
or two giant systems. Whether the prevention of such a monopoly

or the regulatory control of a permitted monopoly as a public
service organization would be preferable is an open question.

"From the standpoint of providing maximum service for re-
searchers, and at the same time preventing the development
of a monopoly . . . the ideal situation might be the devel-
opment of a number of competing systems, each of which can
offer comprehensive coverage of any subject area.
One way
of encouraging such a development would be to provide for a
compulsory licensing scheme under which a data base made
available for use in any one system would thereupon become
available for use in all other systems.

"Whether a compulsory licensing scheme. . . is needed and
whether is would be desirable, are debatable issues

It seems reasonable to suggest that a valid research subject at this time is the economics of provision of data base information in computerized form, considering both the incentives for innovation and the potential for monopoly pricing.

5.7 COPYRIGHT IN COMPUTER PROGRAMS

Some of the questions concerning the copyrightability of computer programs are first listed below and then are considered individually in some detail. These questions are:

(a) Is a computer program a writing of an author and thus eligible for copyright protection under the Constitution?

(b) Is a computer program a "literary work"?

(c) Can a computer program be sufficiently "original" that it
meets the requirements for a copyrighted work?

(d) Should a program in object code be treated any differently
under copyright than a program in a source language?

(e) Is protection of the specific expression of a program but not
the underlying conception sufficient protection to be valuable?
(f) Should copyright protection be denied computer programs on the
basis of the strength of the software industry?

(g) How long should protection last, if a program is copyrightable?

(h) What should be a buyer's usage rights in a program?

5.7.1 The Program as the Writing of an Author

In general, a computer program is written by a human being, and is written in a specific formal language. Those persons engaged in the occupational specialty of writing programs are known as programmers. Others engaged in the tasks of determining requirements for and blocking out the logical flow of programs may be known as systems analysts. However, engineers, scientists, and others may write programs in the course of using a computer to assist them in solving problems in which they are engaged. In the United States today, there are probably several million persons who can comprehend at least superficially a computer program written in FORTRAN, a widely-used programming language. In opposition to the copyrightability of computer programs, the point has been made that a computer program is a set of instructions for a machine, and in fact, according to this view, since the machine cannot operate without the program, the program is really part of the machine. Thus, programmers are really engaged in machine design, according to this argument, and the output of their work is more appropriately protected under a different legal mechanism than copyright.

Several points can be made in rebuttal to this line of reasoning. First, there is nothing inherent in a computer program that cannot be carried out by human labor, given either enough time or enough people to undertake the work. That is, the computer program written by a programmer is a set of instructions understandable by other persons; and it consists of individual steps that are possible to accomplish by humans, if time restraints are relaxed. The only capabilities needed to carry out the instructions of a program written in a typical source language, besides an understanding of the language, are (a) the ability to distinguish negative, zero and positive numbers, (b) the ability to perform arithmetic and elementary Boolean algebra, and (c), the ability to correctly select the next instruction, given explicit and unambiguous directions as to where to find it. It hardly seems fair to the author of such a set of instructions or to the public interest in economic efficiency to deny Government protection to the author's expression simply because, for purposes of speed and accuracy, the instructions are to be carried out by machine instead of by human labor.

If it is to be put forward that computer programs are not in a language. in which humans speak to each other, that point can be accepted without damaging the case for copyrightability. Categories of works now copyrightable include musical works (that is, sheet music not necessarily including any accompanying words); pantomimes and choreographic works; and pictorial, graphic and sculptural works. None of these communicate to humans in natural language. Certainly included in the category of pictorial and graphic works are engineering and architectural drawings and schematic diagrams, all of which can be employed as instructions to those persons engaged in the construction of machines, devices, and structures.