thor's ideas and concepts to the elite who can afford it and who will agree to protect it. The objective of copyright is just the opposite, to encourage the author to permit the wide dissemination of his ideas in return for an exclusive right in the form in which they are expressed. This is the objective of the information industry as well-to obtain the widest possible dissemination of information, fully utilizing all available information technologies while protecting the rights of authors. This is the industry's central function. The business of information is a competitive and self-disciplining business. People in the business of information recognize that the materials in which they deal embody human creativity. They recognize that they must deal with it ethically. In addition, from a business standpoint they do not seek for themselves rights in the property of others which they would not be willing to grant to others in their property. In anticipation of these Hearings, the information industry two years ago, undertook a study of the Revision Bill and the practices that have grown up in industry in dealing with the problems of new technologies. As in traditional publishing areas the trade practices of the industry are built on the rights granted authors by the Constitution. Wide-spread industry practices were analyzed and recommendations were developed by which the practices that have grown up could be incorporated in the Copyright Revision Bill. Specific language changes were prepared which we submit to you. We choose today to synopsize them so that you will have the benefit of the industry's thinking while you evaluate the major change proposed by the educators. We urge the Committee to add the issues relating to new technologies to the list of issues prepared by Ms. Ringer and to hold hearings on these issues. Ms. Ringer cited "present need for a revised law that will anticipate the 21st Century". Much of what relates to new technologies can be dealt with in the context of the present Revision Bill. The work of the National Commission on New Technological Uses of Copyrighted Works can be greatly aided by this Committee's serious analysis of the issues to determine what can be resolved now and what needs to be deferred for further study by that Commission. Before addressing the education amendment the following amendments have been developed by our committee and are offered as detailed suggestions for extending copyright protection to works of authorship in the new information technologies. Proposed amendments to § 101. Definitions: Add the following: A "data base" is a literary work which is a compilation expressed in a form intrinsically intended for use in conjunction with a computer. A "search" of a data base is the examination or analysis of a data base by a computer for particular information relevant to an inquiry, whether or not the examination or analysis results in any display, copy or performance of all or part of the data base, and whether or not the inquirer received it in the same place or in separate places or at the same or at different times. A "computer program" is a literary work consisting of a series of instructions of statements which are in a form acceptable to a computer and which are prepared in order to achieve a certain result, regardless of the nature of the material objects, such as documents, punched cards, magnetic tapes or discs, or computer storage elements, in which the works are embodied. A computer program may be a derivative work of a flow chart and either may be a derivative work of a literary work. A "computer" is any automatic system capable of storing, processing, retrieving or transferring information, or any similar device, machine or process. A "microform composition" is a literary work that results from the fixation of a series of images regardless of the nature of the material objects, such as fiche, film, opaque or otherwise in which they are embodied. "Direct or indirect commercial advantage" includes, but is not limited to sale of products or services regardless of the tax status or organizational nature of the vendor, or method of payment be it on a per unit, membership fee or otherwise. An amendment in the nature of a technical amendment is also offered with regard to the definition for "a work is fixed." To wit: A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is non evanescent and sufficiently permanent or stable to permit it repeatedly to be perceived, reproduced, or otherwise communicated. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission. EXPLANATORY LANGUAGE Because there has been some comment in the literature that the copying of a copyrighted work into the main storage element of a computer might not be an infringement, and because the recorded state of a copyrighted program in main memory (and some other computer storage elements) might only obtain for a few microseconds, it is thought desirable to amend the definition for "a work is fixed". As presently written it is believed that the definition intends, among other things, for an immediately self-decaying embodiment not to be a fixation. Storage in main memory is not self decaying in a whole element sense though the recordings in the components of some computer storage elements are automatically refreshed internally. Storage in main memory is normally erased or replaced on specific instruction only. Such recordation in main memory is, thus, nonevanescent and sufficiently permanent or stable to permit it repeatedly to be perceived, reproduced or otherwise communicated. Thus, the definition for "a work is fixed" would be more suitable and accurate if amended. It is believed such amendment does not change the basic intent of the definition while making clear that recordation in the main storage element of a computer would be the making of a copy. Proposed amendments to § 102. Subject matter of copyright: In general, "(8) Data bases. "(9) Computer Programs. "(10) Microform compositions." EXPLANATORY LANGUAGE Consistent with the first complete paragraph on page 107 of Senate Report No. 93-983, it is noted in connection with the inclusion of "data bases" and "microform composition" that they may, though not always, involve "authorship" both on the part of those whose ideas and concepts are captured and on the part of the data base and microform composition producers responsible for conceptualizing the data base or microform composition, capturing and processing the data or images, and compiling and editing them to make the final product. There may be cases where the producer's contribution is so minimal that the ideas and concepts embodied in the data base or microform composition are the only copyrightable element in the work and there may be cases (for example, public domain materials) where only the data base or microform composition producer's contribution is copyrightable. With regard to data bases and microform composition, it is not the intention of this amendment to preclude others from reconstituting the original source materials and ideas into their own independent work, but rather to assure that society has the choice of choosing from amongst a variety of data bases and microform compositions already in being and available readily in the marketplace by virtue of the operation and application of copyright concepts to these intellectual properties. It is proposed that 102 (b) also be amended, by adding the following: "However, copyright protection may exist in a collection of ideas or abstractions arbitrarily selected from a plurality of alternative ideas or abstractions or in a discretionary pattern of events or processes." EXPLANATORY LANGUAGE This amendment is directed at the copyrightability of computer software. Computer programming is a very flexible art. Given a single problem and a basic plan for its solution, two independent programmers could, and likely would. write two different computer programs. Thus the proposed amendment would ensure that the computer program developer will have copyright protection in the discretionary elements of his sequence of operations and particular processes. Typically, the sequence of operations and particular processes are set forth on a flow chart. A program, as a derivative work of a flow chart, would be protected in that aspect of the developer's creativity effort, too. Considerable effort is spent in working out the sequence of events or steps (operations) that a program will follow and in selecting the processes to carry out the various individual steps. It is believed that this effort involves the elements of assembly, selecting, arranging, editing, and literary expression, and thus is the work of an author. Section 102(b) appears to be included in the bill to ensure that the copyrighting of programs does not result in the equivalent of patenting its system concepts. As written, Section 102(b) goes further than necessary. Even the Supreme Court in the case of Baker v. Selden, 101 U.S. 99, 26Lawyers Ed 841 (1879) did not go that far. Thus, that decision reads: "And where the art it teaches cannot be used without employing the methods. and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith the public; not given for purposes of publication in other works explanatory of the art, but for the purpose of practical application." Therefore, the holding in Baker v. Selden is limited to situations where alternative processes and sequences are not available. Where such are available, it would seem that the Copyright Law should apply and the program developer protected against copying of the discretionary elements of his particular development. Others would still be free to use the methods of operation dictated by the results to be accomplished and to flesh out their own versions of how to achieve those results. It is proposed that § 106, Exclusive Rights in Copyrighted Works be amended as follows: "(5) in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, data bases and computer programs, to display the copyrighted work publicly." and add the following: "(6) to read, to store or to reproduce for storage in a computer; It is also proposed that Section 117: scope of exclusive rights: Use in conjunction with computers and similar information systems, be deleted. A concomitant proposed amendment to the amendments to Section 106 is the deletion of Section 117. By specifically addressing the reading into, storage or reproduction for storage in a computer as an exclusive right of the owner of copyright under this title, this language would explicitly resolve a major question left open by the language of Section 117 in favor of the producer of the copyrighted work. Provision of the search and use rights assures the proprietor of a data base copyright with his basic rights and completes resolution of the main question concerning use of copyrighted works in computers. The word search is included among the proposed amendments to the definitions section of the bill. The output of a search of a data base would be protectible as a derivative work. A new Section is proposed: § 11. Scope of exclusive rights in computer programs: NEW section 11.-Scope of exclusive rights: Computer Programs. "In the case of computer programs, notwithstanding the provisions of sub. sections (a) and (b) of Section 109, it is an infringement of copyright for the possessor of a computer program to make a copy thereof by reproducing it in a computer unless authorized by the copyright owner. "The copyright status of the result of the execution of a program will be that of a derivative work of the information (which may be a program) processed or modified by the executing program and its ancillary programs." Explanatory language: This amendment is necessary if the marketing of programs is to be facilitated by sale and not limited to lease/license arrangements. The amendment would ensure that the repurchaser, or the like, of a machine-readable media copy of a program is not automatically entitled to reproduce the program in his computer. It may be that the first purchaser of a program would have an implied right to reproduce it in his computer. However, if this is an inalienable right of a succeeding holder of a machine-readable media embodying a program, then it may be that the market for the program author is exceedingly limited. This would come about because the first purchaser of a program could read it into his computer, and once having entered it into permanent storage therein, could pass the machine-readable media on to a second computer owner. In this way, the theoretical market for a program might basically be reduced to one. This would not facilitate cost recovery on the part of the author and would undoubtedly stifle development activity. This amendment would also make clear that it is a copyright infringement where a person borrows a computer storage element (disc machine) containing a program from a friend and transfers the program to another host machine without permission of the copyright owner. A new Section is proposed: § 11-: Scope of exclusive rights: Microform Compositions. NEW Section 11-. Scope of exclusive rights: Microform Compositions. "(a) Limitations on Exclusive Rights. The exclusive rights of the owner of a copyright in a microform composition are limited to the rights specified in clauses (1), (3) and (5) of section 106. The exclusive rights of the owner of copyright in a microform composition to reproduce and display it are limited to the rights to duplicate the microform composition in the form of the microfiche, microfilm, opaques or other microforms that directly or indirectly recapture the actual images in the composition, and to display these actual images. These rights do not extend to the making or duplication of another microform composition that is a fixation of other images, or to the display of other images even though such images derive from the same or similar subject matter to those included in the copyrighted microform composition. "(b) Right of copy distinct; the exclusive right to copy or to display copyrighted literary or dramatic work, and the right to copy or display a copyrighted microform composition are separate and independent rights under this title." Explanatory language: This section is modeled after the language of the tape piracy statute and calls for a recognition of two separate rights. The intent of this amendment is to create what has been a format copyright in the work of a creator of a microform composition. There are variations in the nature of the contribution different creators will bring to the creation of a microform composition. A simple reproduction of a pre-existing document might not qualify for copyright as a microform composition. The collection, selection, organization, editing and creating of a large set of materials represents a major contribution of the nature copyright protection was intended. This amendment would provide such protection. It should be noted, however, that the protection provided is limited to the specific composition created and does not preclude any-one else, with independent effort and creativity from microfilming those same materials and, perhaps, qualifying for a separate copyright for his efforts. By way of a technical amendment to § 301. Pre-emption with respect to other laws, the following amendment is proposed: "$ 301. Pre-emption with respect to other laws. "(a) On and after January 1, 1977, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. "(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to: "(1) subject matter that does not come within the subject matter of copyright as specified by Sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or "(2) any cause of action arising from undertakings commenced before January 1, 1977; or "(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106, including rights against misappropriation not equivalent to any of such exclusive rights, breaches of contract, breaches of trust, trespass, conversion, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation. "(c) Nothing in this title annuls or limits any rights or remedies under any other Federal Statute. "(d) Compliance with the deposit requirements of this title shall not be destructive of any such "not equivalent" rights." An amendment to Section 407. Deposit copies of phonorecords for Library of Congress is offered as follows: "(b) The required copies or phonorecords shall be deposited in the Copyright Office for the purpose of reference within the Library of Congress. The Register of Copyrights shall, when requested by the depositor and upon payment of the fee prescribed by section 708, issue a receipt for the deposit." Subsection (b) is amended to limit the use that might be made by the Library of Congress of deposited works. Items such as data bases, computer programs and microform compositions are costly and the use thereof for purposes other than reference within the Library of Congress would substantially impact the opportunities for authors to recover their costs, particularly considering the limited quantities in which they are marketed. An amendment to Section 408. Copyright Registration in General is offered as follows: Add a new section (f): "(f) In the case of microform compositions deposit copies are required only where the retail price of the composition is $1,000 or less. In cases where microform compositions are created in editions, deposit copies are required only when the total number of copies in a particular edition exceeds 200 in number." The creation of a microfilm composition often is an expensive process and results in very small unit sales. Many microform compositions sell only 20 or 30 copies and a total sale of 50 is usually considered quite a successful work. To require the creator of a microform composition to deposit two copies out of perhaps a total of 20, represents a disproportionate burden. The manufacture of each copy, in addition, is a costly effort. The purpose of this amendment is to limit the impact of the deposit requirement on the overall objective of the copyright system: to obtain the widest possible dissemination of information useful to science and the useful arts. An amendment to 704, Retention and Disposition of articles of deposit in Copyright Office is proposed as follows: (a) Upon their deposit in the Copyright Office under sections 407 and 408, all copies, phonorecords, and identifying material, including those deposited in connection with claims that have been refused registration, are in the custody of the United States Government." Subsection (a) would be amended to specify that deposit copies are in the custody of, rather than the property of, the United States Government, Title I would thus be left in the author and the Library of Congress' rights of utilization and disposition limited to that of a bailee. Again the intention, in the light of vastly expanded library networking concepts, is to limit the use that may be made of expensive deposit copies by others than the Library of Congress. A replication and redistribution effort by the Library of Congress could severely affect the rights of authors otherwise granted in this legislation. We believe these amendments deserve consideration in this revision cycle. They represent the results of day-to-day experience of authors, information companies, and users seeking to work out within existing copyright concepts workable relations for the dissemination of information through these technologies. We recognize the great pressure on the Committee to act on this legislation, particularly in view of the immense effort you have already devoted to it. These are no small matters, however: the present and future methods for sharing the works of authors with world-wide audiences are to be found in this complex mix of constitutional, economic and social issues. Whether you are able to take the time to understand these new technology issues now and to act on those which deserve immediate attention or are constrained to defer to the National Commission on New Technological Uses of Copyrighted Works on all of them, it should be clear that the constitutional rights of authors will not be protected by exemptions that essentially free large computer systems to have free access to all works of authorship. One of the major features of the computer age is the fact that state after state has created large university-based computer facilities and have given these facilities extensive authority to serve not only educational users, students, but industry, libraries of all kinds and government, state and federal, as well. The result of granting such facilities an exemption to input into computers copyrighted works of authorship without infringing the copyright would be the creation of a whole new information distribution system in the United States. The system would not be based on author's rights as the present system is based. Rather it would be based on state bureaucratic decisions. Only those authors which the state-owned networks chose to respect would be granted anything approaching the rights of authors enjoyer in inkprint publications. The works of authors could be freely installed in computers without the authors' approval or even knowledge. The authors ideas could be used, re-documented and even distorted as to source, meaning and context. One area served by one system would |