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The second draft of the general revision of the Copyright Act (H.R. 4347) would appear to give the copyright proprietor greater protection against the unauthorized use of his material by a computer system.
Section 106(a)(1) grants the copyright proprietor the exclusive right to reproduce the copyrighted work in "copies." The word "copies" is defined in section 101 as:
*** * * material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'copies' includes the material object, other than a phonorecord, in which the work is first fixed."
Since the definition of "copies" is not restricted to tangible, visual expressions of the work, it would seem that the processes used in input, storage, and retrieval do not have the escape hatch that may exist for some of such uses under the present law in determining whether an infringement has occurred. It should also be noted that section 101 provides that a machine or device “is one now known or later developed.” It can be seen that the Copyright Office is well aware that the new technology requires an adjustment of concepts in order to preserve copyright protection.
Even the subject matter of copyright appears to be broadened under the language of the proposed revision. The term "literary works" is defined as:
"* * * works expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, or film, in which they are embodied."
Thus, material which under present law would not qualify for copyright-that is, "data" as contrasted with “information"-may in some instances under the proposed revision qualify for protection. Basically, the Register of Copyrights has taken the position that he does not wish to be bound by the existing status of technology in delineating the exclusive rights granted to the copyright proprietor.
Although not part of the present statute, the judicially developed doctrine of fair use has to some extent limited the exclusive rights of the copyright proprietor. In essence this means that even though it was intended that the copyright proprietor be accorded the exclusive rights set forth in the act, it became apparent very early that the exclusive rights section could not be construed with complete rigidity but that some elasticity in concepts was necessary. For example, for purposes of criticism, it was certainly necessary to permit the quoting from a work even where it is the subject matter of a copy. right. The copy of an insubstantial excerpt is held to be fair use by many. An excellent expression of the criteria of fair use was announced by Judge Story as early as 1841 in the case of Folsom v. Marsh (9 Fed. Cas. 342 (CCD Mass.)).
"One must look to the nature and objects of the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale or diminish the profits or supersede the objects of the original work."
The standards set forth by Judge Story retain their validity today. The proposed revision of the Copyright Act gives statutory recognition to the doctrine of fair use in section 107 which states simply: "Section 107. Limitation on exclusive rights: Fair use
"Notwithstanding the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright."
The question that now arises is whether the doctrine of fair use will be interpreted so as to encompass any or all of the techniques of input, any or all of the techniques of storage, and any or all of the techniques of retrieval. Would the answer be modified if in the case of retrieval, the retrieved portion is an excerpt only?
There are those who argue that libraries or similar nonprofit institutions may even deliver a hard copy reproduction of a copyrighted work to a scholar who has stated in writing that he desires such reproduction in lieu of a loan of such publication for the purpose of research. There are others who maintain that if the hard copy or the ephemeral retrieval is an excerpt of a copyrighted work (let us say a page or several pages of a much longer work), then the doctrine of fair use shields the user from any complaint of the copyright proprietor. Still others insist, in those instances where, and to the extent that, computer systems supplant the copyrighted book in disseminating its contents, the exclusive rights of the copyright proprietor have been injured and the doctrine
of fair use is not available as a defense. Obviously, most copyrighted information (not novels or poetry) but reference works, textbooks, and the like, is not read from beginning to end in one session or in sequence but is intended to be available to the user piecemeal. Therefore, the uses of portions of the material by a computer system add up, as a practical matter, to the use of the whole of the copyrighted work.
Even if we are to assume that the techniques of information storage and retrieval processes all constitute infringeinents if they are unauthorized uses, still the copyright owner is confronted with very practical deterrents when he seeks to enforce his rights. The copyright proprietor of a published work, copies of which are readily available, would find it exceedingly difficult indeed to determine when a computer system has infringed his work and the extent of such infringement. Would it be practical for a copyright owner to press an action where the information storage and retrieval system has either copied or disseminated only small portions of the work? Is the copyright proprietor likely to seek legal redress if he knows only of the reproduction of a single copy of this work; yet is not the sale of all published works to ultimate customers merely a multiplication of the sale of single copies?
The first question which we attempted to answer today is what uses, if any, of published copyrighted works by computer systems constitute a violation of the author's exclusive rights in his work. The answer appears to be that the new technology has developed new uses and that the existing Copyright Act and case law does not appear to be fully applicable. If any of the uses made of a copyrighted work by a computer system do not come under the aegis of a Copyright Act, the question arises : does our law of unfair competition take care of the gap? In its early development the law of unfair competition struck down the practice of “passing off" one's work or product as being the work or product of another. Later, some jurisdictions extended the concept of unfair competition to those instances where there was misappropriation of the work or product by another.
An example of the liberal direction the law of unfair competition had taken is found in the case of Addison-Wesley Publishing Co. v. Brown, 133 U.S. Patent Quarterly 647 (Eastern Dist. N.Y. 1962) where the plaintiff had published a physics textbook containing questions to the students at the end of each chapter. The authors of the textbook had intentionally omitted answers to the questions for the reason that teachers employing the textbook found that its use as an educational tool would be more effective if the student did not have access to the answers. The defendants published a book of answers to plaintiff's questions. Before the court considered whether copyright infringement existed, which itself presented a very troublesome problem since defendants' answer book did not verbally repeat the text of plaintiff's book, the court found that the sale by defendants of their book of solutions constituted unfair competition. The basis of the court's finding was the fact that the availability of the book of solutions would cause the schools to cease buying plaintiff's text. It can be seen that there exists a strong analogy between the reasoning of the AddisonWesley court and the misa ppropriation by information storage and retrieval systems of the work product of an author. The market for an author's work would be diminished if free access to such work or portions thereof were to be made available by computer systems.
However, recent decisions of the U.S. Supreme Court have raised serious doubts with respect to the extent the law of unfair competition now protects a work subject to the provisions of the Copyright Act. The cases of Sears, Roebuck & CO. V. Stiffel, 376 U.S. 225 and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 held that where an object is not protected by a patent the State law of unfair competition will not, in the absence of "passing off," protect against its unauthorized use or duplication by another. While the Supreme Court cases dealt with patents, there are those who contend that they will be deemed applicable to the copyright field. It may well be that even where a work is protected by statutory copyright, the copyright proprietor cannot assert any rights with respect to the unauthorized use of his work beyond those rights expressly set forth in section 1 of the Copyright Act. Thus, for example, where a court would hold that the ephemeral reproduction by a computer system of a work on a screen does not constitute an infringing copy, it may well refuse to grant the work protection against a claim that the use of the work by the computer was a misappropriation of it or unfairly competed with it. On the other hand, the courts may hold that where an author is protected by statutory
copyright, the Stiffel and Compco cases would not preclude a claim of unfair competition in addition to the exclusive rights granted by section 1 of the Copyright Act. It may be that unfair competition is unavailable only where an author's work has not acquired statutory copyright or where such copyright has been lost.
The cases that have cited Compco and Stiffel do not appear to indicate to what extent, if any, the law of unfair competition presently adds to the rights given to the owner of material by statutory or common law copyright. The Ninth Circuit in the case of Cable Vision, Inc. v. KUTV, Inc., 335 Fed. 2d 348 (1964) held that the Stiffel and Compco cases preclude a cause of action for anfair competition where a television station complained that a community antenna system was distributing TV programs identical to those in which the television station claimed exclusive contractual rights. The Court noted that the televised material was capable of copyright protection and in the absence of a copyright claim, the Supreme Court had precluded a cause of action for unfair competition.
In Capitol Records v. Greatest Records, 43 Misc. 2d 878 (Special Term, N.Y. County 1964) it was held that record piracy is the subject of injunctive relief despite the U.S. Supreme Court decisions. The Court held that the proprietor of an unpublished work is entitled to common law unfair competition protection and that the State law of unfair competition as applied to common law copyright cases remains unaffected by Compco and Stiffel. The Supreme Court of Massachusetts has announced a similar doctrine in Edgar H. Wood Associates, Inc. v. Skene, 197 N.E. 2d 886 (Mass. 1964).
My discussion thus far has been concerned with published information that is protected under the existing Copyright Act and a comparison of those rights with the relevant sections of the proposed revision. What, if any, are the problems which arise when an unpublished manuscript is used by a computer system?
Under present law an unpublished work enjoys its protection under the common law from the date of its creation until publication (thereupon it becomes subject to the Copyright ct) Therefore, a manuscript, under existing law, theoretically enjoys perpetual copyright protection. With respect to unpublished works, questions as to exclusive rights, what constitutes a copy or a performance discussed earlier in connection with published works, remain basically the same. The answers, or lack of them, propounded by the speaker, also remain the same.
However, the present Copyright Act presents a special problem for unpublished information utilized by an information storage and retrieval system with respect to the concept of “publication" (which would result in the loss of its "perpetual" common law protection).
Before we discuss the meaning of the term “published" it should be noted that the present act as well as the proposed revision of the copyright law both require that in order to be protected by statute, the “published" work must have appropriate copyright notice (c in a circle, or the word copyright, or copr., name of the claimant and the year first published). If the work is published without the required notice, as required by section 10 of the present act and under section 401 of the proposed revision, the work will fall into the public domain.
It has been held that to obtain statutory copyright under section 10 of the present act, publication must be general. This means that copies of the work must be made available or distributed to the public at large. A distribution to a limited number of people for a limited purpose will not suffice.
Accordingly, where a work has been fed into a computer in unpublished form the question of whether the retrieval of such information will result in "publication” for the purposes of vesting the work with statutory copyright will depend upon the number of individuals to whom the information is to be made available and the purposes for which it is to be used. If the work, or portion thereof, is retrieved by only a few researchers at different times, the court may hold that there has never been a general publication. On the other hand, there may be instances where computer systems will make a work available to a large number of people at a single time, as would be the case where educational institutions would employ the computer system in a classroom. Retrieval in this situation might be held to constitute general publication.
Assuming that the retrieval processes result in the work on portions thereof being made available to more than a limited number of people, the question remains as to whether retrieval of a portion of the work would result in a "publication” of the entire work or only of the portion retrieved. Thus, where a work has not been published previously, and the output is only of portions of the work, years may pass before the entire work may be "published" by the computer system for the purpose of acquiring statutory copyright. If this is the case, then, under the present act, would publication result in protection under the statute of those portions of the work which have been retrieved by the computer system, leaving the remaining unretrieved portions under perpetual common law protection?
The requirement that the work must be published with notice of copyright raises still further problems. Is it necessary that a copyright notice appear on each excerpt of the work retrieved from computer system? The problem of notice is obviously intended as a warning to a potential user that the work is protected by copyright. Absence of notice is generally understood as a dedication of the work to the public. These concepts were easier to enforce and easier to follow where traditional publication resulted in hard bound copies of the entire work. Where, however, the hard copy retrieved may be an excerpt of one book or a page or a chapter, or where the reproduction of such portions may be ephemeral, the question of when and where to put the copyright notice to avoid the forfeiture of copyright becomes even more complex. Must every replication of the work or portion thereof by a computer system bear a copyright notice? The present act raises the additional problem of where to place the copyright notice, since the act (but not the proposed revision) is explicit in the technicality of placement of notice.
In addition to deciding whether a publication of a manuscript has occurred by computer usage, the determination as to what date to put in such notice is equally disconcerting. Under the present Copyright Act statutory copyright commences on the date upon which the work is first published with notice and continues thereafter for a period of 28 years (subject to an additional 28-yearrenewal term). Even though under the proposed revision the term of statutory copyright is for the life of the author plus 50 years, a date of first publication is still required under section 401. Thus, even if one were to conclude that feedout by the information storage and retrieval system of part of the whole previously unpublished manuscript constitutes publication, the decision still remains as to whether the first output of the first excerpt of such a manuscript is the date of first publication of only such excerpt or is it the date of first publication of the entire work. Moreover, one can argue that input of the unpublished manuscript constitutes publication and therefore the appropriate date should be the date of input.
The proposed revision of the Copyright Act would seeni to eliminate some of the problems with respect to the acquisition and loss of copyright protection. Section 302 (a) of the proposed revision provides that copyright in a work created on or after January 1, 1967, subsists from the creation of the work. This provision would seem to eliminate the problems with respect to when "publication” occurs for the purpose of acquiring statutory copyright. The question as to when common law copyright is lost as a result of "publication" is also eliminated. Section 301 of the proposed revision, in effect, eliminates common law copyright protection for works created after January 1, 1967.
The notice requirement set forth in the proposed revision solves some problems but leaves others unanswered. Section 401 of the proposed act provides that when a work is published, a notice of copyright shall be placed on all publicly distributed copies from which the work can be visually perceived either directly or with the aid of a machine or device. It would seem that notice would not be required at the time of input, indexing, or internal scanning since none of these processes would involve public distribution of copies. However, the question still remains as to when and where a notice must appear on ephemeral or hard copies of the whole or part of a work resulting from the retrieval process of the computer.
Time does not permit a discussion of all the problems nor of any of them in depth. The purpose of this survey of copyright and related problems of unfair competition arising from the operation of information storage and retrieval systems is to focus attention on the problems created by the new technology and the real and immediate need for a major revision of the copyright law.
Mrs. LINDEN. Information storage and retrieval began as a response to the flood of data and reports emerging from the enormously ex
panded research efforts of the past two decades. Currently it is being applied not only to research but to education as well.
Its basic instrument is the computer which stores information on magnetic tape, but information systems are based also on microfilm and punchcards of several kinds. At Bethesda, Md., stands the National Library of Medicine.
It houses a sophisticated computer system and a highly trained staff who read and index all of the articles appearing in current medical journals and books.
The computer collates and prints out the Index Medicus, which is published and distributed on a regular schedule. The information system known as “Medlars" is primarily devoted to indexing.
A related but significantly different information retrieval system was announced in the New York Times on March 4, 1965. In announcing the joining of these three major universities, Harvard, Yale, and Columbia medical school libraries, in a computer and telephone line system, the article continues to state that this system will be equally adaptable to groups of law, business, or general libraries as well. And now I quote:
When telecommunication and photographic reproducing devices are added to the network system, it will be possible to eliminate some duplication of material among libraries. Pages from a book in New York could be flashed to a user in another city and even reproduced for him in take-home form.
Later in the same news item, Thomas P. Fleming, head of the Columbia University Medical Library, states:
With the computer you can enter many, many more subject headings. These go in compact, miniaturized form on magnetic tape and are stored on discs. Just as in a jukebox when a person pushes the button, the arm finds what he wants, so the searching arm goes along with the discs and picks out what the researcher wants.
The difference between "Medlars" and the medical library network is clear. At present, “Medlars” is devoted primarily to the indexing of journal articles. The new network is designed to retrieve and print out information from books.
"Current Research and Development in Scientific Documentation," volume No. 13, dated November 1964, issued by the National Science Foundation updates similar volumes previously published. In close to 500 pages, the current status of 150 information storage and retrieval systems is described. These include the activities not only of Government-sponsored research projects of universities, but of many of our major corporations such as Radio Corp. of America, Philco Corp., Motorola, Sperry Rand, IBM, ITEK, Bell Telephone Laboratories, Burroughs, Magnavox, and Chrysler Corp.
May I call your attention to page 243 of this publication which reports on the Recordak Corp., a subsidiary of the Eastman Kodak Co. The Recordak Lode Star Reader-Printer described in this report is in operation here in Washington.
It makes possible automatic location and reproduction either on a screen or on paper the pages of a book or journal located in a central storage miles away. I have seen this system in operation.
The access time for locating a document out of many thousands and flashing it on the screen is approximately 7 seconds. Print-out-which is the reproduction in hard copy form of as much of these articles or books as you choose appeared to me to be as rapid.