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essentially an adversary proceding between producers and users before an impartial panel empowered to set rates.

Copyright is a limited monopoly over a single work. In the markets for works of general interest (e.g. phonorecords, musical performances) anti-trust problems have concerned, in general, attempted control over many works. The results have been imposition of a compulsory license or judicial intervention.

5. COPYRIGHT IN COMPUTER-READABLE WORKS

Following the development in the preceding chapters, the questions of copyrightability in computer-readable data bases, full text, and computer programs may be considered. First some of the issues raised in 1967 hearings are reviewed, so that some of the arguments can be aired and the situation can be placed in context. Then, the current situation resulting from the passage of the 1976 General Revision is described. The issue of registration and disclosure is then considered in the context of public policy about information transfer.

The technical issues of copyrightability are then pursued, with the economic aspects of data base uniqueness and computer network distribution of copyrighted works considered. The conditions of sale of computer-readable works which need to be different than works in hard copy are discussed.

5.1 TECHNOLOGY FORECASTING, 1967 STYLE

The questions of copyright in literary works entered into a computer and of copyright in computer software were raised substantially in testimony before the Senate Committee on the Judiciary concerning revision bill S.597 in March 1967.41 Authors and publishers appeared concerned by the possibility that, in the near future, a significant amount of publishing would be done in machine-readable format with extensive distribution of works accomplished by computer networks without hard copy. Clearly, there were serious copyright implications in this concept. Professor Jesse Markham, speaking on behalf of the American Book Publishers Council and American Text Publishers Institute stated that:

"The present state of technology suggests that the computer
will affect conventional publishing in two distinct ways:
(1) The initial versions of some types of information that
are reduced to writing, copyrighted and published, will
very likely be computerized, thus by-passing conventional
publishing altogether; and (2) The contents of published
works will be stored in computers and, once stored, serve
as a substitute for additional printed copies ..."42

Similarly, Mr. Lee C. Deighton, also appearing on behalf of the
American Textbook Publishers Institute, stated that:

"The same kind of transmission (as closed-circuit television]
is now technologically possible in computer network systems.
It is contemplated that in these systems, a central com-
puter will store copyrighted works, and that they will be
transmitted by wire to hundreds of individual console
screens upon demand. It is merely displayed on the con-
sole screen to be read at leisure by the user. The computer
in effect becomes the library."43

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.44 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. 1147

"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."48

.. 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 simultaneous 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. 5T 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

ror him in take-hom another city and York could be

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."53

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

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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

that the matteracticans rep.

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

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