44

Ms. Elizabeth Janeway, appearing on behalf of the Authors League of America, was more certain of the arrival of electronic publishing. "It is clear that computers and computer networks will soon become a principal means of disseminating much that authors write," she stated." As a reference, Ms. Janeway cited a study Copyright and Intellectual Property published (in paper) by the Fund for the Advancement of Education.45 This study was cited also by another testifier,

Mr. Charles Gosnell, chairman of the Committee on Copyright Issues of the American Library Association and director of the libraries of New York University.45 The cited study included the following quotes:

"The library of the future will be unrecognizable to the
librarian of today; it will be so dependent on the hard-
ware of the new technology, that apocryphally speaking,
the librarian of the future will be a mechanic with a
screwdriver, ever alert to repair breakdowns in the
service."47

"Audio-visual dial-access teaching machines, operated
by remote control, will provide hundreds and even thou-
sands of students with simultaneous audio and visual
access to a journal article or excerpts from a book."

1148

"... the computer, in essence, assumes the role of a
duplicating rather than a circulating library. One copy
of a book fed into such a system can service all simul-
taneous demands for it; of course this substitution for
additional copies will vitally affect the publishers'
traditional market."49

"The information world of the future will revolve around
information systems, educational programs, and library
complexes in which the complete documentation of the
system concerned will be equivalent to a computer memory.
In a sense, therefore, by providing copies of works
stored in the computer, these systems become publishers.
Traditional publications will also be available from
commercial publishers, but it would seem that 'nonbook'
production will predominate."50

The cited study quoted an article from the New York Times which was mentioned also by Professor Jesse Markham. 51 This article had reported that:

"The medical libraries of three major eastern universities
will be tied together in a network of computers and tele-
phone lines to give scholars virtually instant access to
their pooled resources .. the three libraries will
then contain 1,025,000 items. These can be searched by
computers in seconds . . . When telecommunication and
photographic reproducing devices are added to the network

system

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."52

The time scale in which these changes would come about was unfortunately not reported. The relative economics of the situation, such as the development and implementing costs as well as the operating costs relative to current systems, were similarly not reported. As of 1977, some publishing in electronic media is being done, particularly with data bases of various types. In addition, computers are now heavily used in the publishing process, e.g., typesetting and line justification. However, the vast changes contemplated by the above quotes have not materialized, although they might occur in the future. Certainly, the bulkiness of paper-based systems and library labor-intensivity are forcing functions. The costs of paper, of data and postal communications, and of computer programming, the sunk costs (economic and social) in current systems, and the psychological needs of readers to prefer one kind of media to another will be factors in the rate of change.

Not everything that is technically feasible is economically feasible or even desirable. As was reported by the National Academy of Sciences in 1971:

"The primary bar to development of national computer-based
library and information systems is no longer basically a
technology-feasibility problem. Rather it is the combina-
tion of complex institutional and organizational human-
related problems and the inadequate economic/value system
associated with these activities."
1153

This means, in plain text, that decisionmakers didn't want it strongly enough to put up the money at that time.

5.1.1 Technology of the Future, Updated

Although the time scale implied by the predictions of 1967 was incorrect, the technological feasibility of what was described cannot be denied. Changes in prices among various elements of current and future systems plus additional technological breakthroughs may yet cause more electronic publishing than can be envisioned currently.

At present, the development of large-scale integration of logic elements and improvements in mass production technology have brought down the prices of central processor units of computers enormously. The capabilities of peripheral units have similarly been improved. The result is that the prices of some mini-computers of substantial capability are now equivalent to the prices of some automobiles. The sale of electronic home entertainment centers that involve substantial logic capability and which plug into TV sets have burgeoned. This is one step short of the home computer.

It may be that books will be sold on video disks the way phonograph records are sold, to be viewed on a TV screen controlled by a home computer. It may be that libraries will store many books in memory, and that hundreds of terminals will permit simultaneous reading by patrons on TV screens (with optional printout) of anything in the memory. The current uses of computer-assisted instruction and of computerized data bases may set the example.

However, the cost of computer software to accomplish the desired functions cannot be ignored, and it is not decreasing in cost. The cost of operating any computer system today is fast approaching a 90%-10% split in software and personnel versus hardware. In addition, it is likely that social, institutional, and psychological factors will have as much if not more control over the future in this area than technological and economic factors.

5.2 SOME TECHNICAL ISSUES IN THE HEARINGS, 1967

The issues raised in the Senate hearings in 1967 on computer-related works can be indicated in part, with reference to two points raised by EDUCOM (the Interuniversity Communications Council) in its statement entitled The Copyright Revision Bill In Relation to Computers.

54

First, the EDUCOM statement opposed granting copyright protection to computer programs except in a very narrow sense. The statement said that "as the programs represent algorithmic plans for using machines to achieve practical results, they are poles apart from the conventional subject matter of copyright . 55 Furthermore, the statement said that if a copyright were granted to a program, this should "in no event" bar an outsider from replicating the program exactly and using it "in order to carry out the process or practice the art."56

Second, the statement called for an educational exemption from infringement for entering copyrighted material into a computer, noting that there will be cases where the proprietor is not interested in making the needed transformation (to machine-readable form) and the institutions must have access to the work.57

The EDUCOM statement also called for retaining "traditional exemptions" in educational use of copyrighted works and suggested that the Revision Bill then being considered had provisions which "seem to eliminate virtually all preference for educational and related institutions utilizing copyrighted works by means of computers."58

The General Counsel to the Electronic Industries Association, Mr. Graham W. McGowan, also testified at this hearing.59 Mr. McGowan testified that his organization favored exemption from infringement for computer input of copyrighted works (as distinguished from computer output). Among the bases of the argument were: (a) the author's reward should be based on demand for his work and that entering a work into a computer "is not attributed to the demand for the copyrighted

work"; (b) "when in a computer, a copyrighted work is not intelligible to any human being. Therefore, there is no harm to any copyright owner to put works in storage . . ."; (c) "to be required to seek permission to only store the work in a computer is time-consuming and expensive in and of itself. Having to deal with every copyright owner would be overly burdensome and highly impractical . . ."

The publishers point of view was perhaps summed up by this statement of Mr. Lee Deighton:

"We have looked at copyright legislation not only as
publishers but as citizens of a free economic society.
We have observed a central thread running through the
dialogue of the past three years. It is quite simply a
demand for free use of copyrighted materials through the
grant of special exemptions. It is our position equally
with authors, composers, artists and other creative talents
that the product of a man's mind and imagination is
property just as much as the product of his hands or
machines. Every exemption granted is an abridgment

of the creator's rights to enjoy the fruits of his labor.
As citizens, we are concerned lest the granting of exemp-
tions proceed so far as to hinder the flow of creative
materials."60

5.3 CURRENT STATUS, 1976 GENERAL REVISION

Several additional Congressional hearings and debates have been held since 1967. An analysis of the issues of copyright and the computer as seen in 1973 is available in a publication of the American Society for Information Science.61 The recent history of copyright legislation may be obtained from the Copyright Law Revision Reports of the Congress (Senate Report No. 94-473 at pages 47-50 and House Report 94-1476 at pages 47-50). The net results of those hearings and debates at this time are embodied in the new statute P.L. 94-553, enacted October 19, 1976, to take effect January 1, 1978.

The law with respect to the use of copyrighted works in conjunction with computers would be considerably clearer at this time if it were not for the provisions of Section 117. That section says that the new Act has no effect on the use of copyrighted works in connection with computers. That means, in effect, that copyright law on computer use. remains in doubt.

Section 117 was inserted because of the existence of CONTU, and the section is expected to be altered or eliminated as a result of eventual Congressional action on CONTU recommendations.

In any event, the new Act states, in Section 102, that "copyright protection subsists . . . in original works of authorship fixed in any tangible means of expression," and states, in Section 106 that "the

owner of copyright.... has the exclusive rights....(1) to reproduce the copyrighted work in copies or phonorecords [and] (2) to prepare derivative works based upon the copyrighted work....'

That means that the right of conversion of a copyrighted work from one medium to another is reserved to the proprietor, excluding specific exemptions given elsewhere in the Act. It seems clear, then, if a copyrighted work can be converted to a computer-readable format without actually using a computer to do it, the converted work is protected. The law with respect to the use of the work in a computer or the conversion of a work to computer-readable format using a computer is not clear at present because of Section 117. Thus, if it were not for Section 117, the debate over infringement at input or output would be over. The copyright holders in the absence of Section 117 have control of their works in any medium (excluding specific exemptions) and therefore at input.

On the subject of the copyrightability of computer programs, the Copyright Office has been accepting programs for registration since 1964; although its Circular 61, Computer Programs, of latest date March 1975, states that certain issues about the copyrightability of programs are "doubtful." The two issues asked in Circular 61 are these:

"(1) Is a program the 'writing of an author' and thus copy-
rightable, and

(2) Can a reproduction of the program in a form actually
used to operate or be 'read' by a machine be considered
an acceptable 'copy' for copyright registration?"

The first question above references the Copyright Clause in the Constitution, not any particular Act of Congress. If computer programs are Constitutionally copyrightable, it seems clear at least that the humanwritten hard-copy form of an "original" computer program is copyrightable, barring specific denial by Congress, regardless of question (2) above.

Furthermore, if (1) above is answered in the affirmative, then in the absence of Section 117 of the new Act, the computer-readable version most likely would be considered a valid copy. However, because of Section 117, if the computer-readable version had been made with the aid of a computer, its copyrightability is clearly in doubt.

5.4 THE IMPLICATIONS OF ABOLISHMENT OF COMMON LAW PROTECTION

It was made clear in Section 2.1 above that common law copyright is ended in the United States as of the effective date of the 1976 General Revision. The concept now ending, dating back to Donaldson v. Becket, 1774, is that the author has complete dominion over his work with common law copyright protection before publication, but he must rely on statutory copyright following publication. Despite the fact that this "dual system" was unique among nations, it originally had considerable