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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
of the creator's rights to enjoy the fruits of his labor.
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-
(2) Can a reproduction of the program in a form actually
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
Specifically, the line of demarcation between works intended for general public distribution and those intended to be kept private was publication. Those works intended to be distributed publicly could be disclosed and given statutory copyright protection. Those works intended to be kept private were, at the option of the owner, not disclosed and not copyrighted under statute. Thus, for disclosure and publication, activities which made the work more susceptible to infringement, the copyright owner obtained the protection of the Federal Government. Without publication or disclosure, a proprietor could still make lease agreements with specific users involving nondisclosure which were enforceable in State courts under common law copyright (as well as under other types of protection).
Under the 1976 General Revision of Copyright Law, the legal distinction based on publication is ended. All works, "whether published or unpublished" are governed as of January 1, 1978 by the Federal copyright statute with regard to "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright" (Section 301(a)). On and after the effective date, "no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State" (Section 301(a)).
Thus, common law copyright protection in unpublished works is ended. However, unlawful activities "violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general Scope of copyright. are still subject to the available "remedies under the common law or statutes of any State . . . ." (Section 301(b)). The bill that passed the Senate, S.22, gave examples of unlawful activities against which remedies are still available. These included nonequivalent misappropriation, breaches of contract, breaches of trust, trespass, conversion, invasion of privacy, defamation and deceptive trade practices such as false representation. However, these examples were eliminated from the final bill as enacted. Therefore, the totality of exactly what remedies would qualify may be in doubt.
Since unpublished works are now copyrightable, a new definition was needed to define the onset of copyright. Now copyright in a work "subsists" (begins) at "its creation" (Section 302(a)) which essentially means from the moment that the last finishing stroke of creation is completed. Thus, even if the author does not wish copyright, his work has it from the moment of its completion if it is in a category of copyrightable works and the work is not otherwise exempted from copyright.
5.5 REGISTRATION AND DISCLOSURE
A copyright owner need not take advantage of copyright. He need not register his work with the Copyright Office if he does not wish to disclose his work publicly. Under the 1976 General Revision, registration is optional; but agreement to register involves deposit of the work with
the Copyright Office and therefore a certain public disclosure (Section 408). For works that have been published with a notice of copyright, there is the additional requirement at the option of the Register of Copyrights, of deposit of two copies for the Library of Congress (Section 407(a)). Unpublished works and works published without copyright notice are exempt from this latter requirement. Even if copies for the Library of Congress are demanded, this requirement may be circumvented by payment of a fine of $250 plus the retail price of two copies of the work (Section 407 (d)).
The advantage of registration, under the 1976 General Revision, is that it is a prerequistie to an infringement suit (Section 411); and furthermore, awards of statutory damages are permitted only for infringements occurring after the date of registration of an unpublished or a published work; or for infringements occurring after the date of publication of a work and before the date of its registration if and only if the work is registered within three months of its date of first publication (Section 412).
Thus, the copyright owner has a trade-off. If he wants the maximum Government legal protection, he must register his work and disclose it to the extent of Government requirements. If he does not wish to register and disclose it, he need not; but in that case he must depend for protection, to a large extent, on lesser remedies or on remedies available through State courts that are not equivalent to copyright protection.
5.5.1 The Extent of Disclosure Requirements
The maximum statutory requirements for registration (of a literary work) must include, in the case of an unpublished work, one complete copy, and in the case of a published work, two complete copies (Section 408(b)).
However, the Register of Copyrights is authorized to permit, for particular classes of works (with classes defined by the Register), "the deposit of identifying material instead of copies (Section 408(c)(1)). Furthermore, "the Register of Copyrights may by regulation exempt any categories of material from the deposit requirements [for the Library of Congress]." (Section 407 (c)).
Thus, the Register has been assigned regulatory authority which has very important public policy implications.
5.5.2 The Policy Implications of Disclosure Rules
There is in this nation an underlying philosophy that information transfer should be maximized, subject to certain restraints, such as those due to personal privacy, trade secrecy, and national security. In the area of scientific and technical information, Federal responsibilities are quite clear.
The National Science Foundation Act of 1950 authorized and directed NSF to "foster the interchange of scientific information among scientists in the United States and foreign countries."62 In the same Act, NSF was given the authority "to publish or arrange for the publication of scientific and technical information so as to further the full dissemination of information of scientific value consistent with the national interest. "63
In a report of the President's Science Advisory Committee, 1963, known as the Weinberg Panel Report, it was concluded that "transfer of information is an inseparable part of research and development."64 In a report of the National Academy of Sciences, the SATCOM report, 1969, recommendations were made to insure effective communication of scientific and technical information;65 and in the "Greenberger Report" of the NSF and the Federal Council for Science and Technology, 1972, technical information was referred to as "a vital national resource.
The importance of information flow to modern society has been noted by important observers such as Daniel Bell and Peter Drucker. Bell has written that the United States is the first postindustrial nation and that "a postindustrial society is organized around information and utilization of information in complex systems, and the use of that information as a way of guiding the society."67 Drucker has concluded that "knowledge, during the last few decades has become the central capital, the cost center, and the critical resource of the economy. . Free trade in goods. . . is important. But free movement of capital and free movement of knowledge may be more important still."68
It would seem, therefore, that there is a strong public interest in maximizing disclosure on two counts: first, for the maximization of information transfer about original works, with all the implications for additional creativity that this implies; and second, to make meaningful the exchange of full protection of copyright for disclosure through registration. If registration is to imply a minimal disclosure, then the proprietor is capable of obtaining two opposite types of protection, surely not the intent of Congress. A permission for minimal disclosure would give full copyright protection; but, would permit the proprietor to maintain his work essentially secret, particularly if he makes it available through lease agreements only with restrictive disclosure clauses.
It is hoped that provisions for maximum disclosure in the public interest can be worked out without imposing difficult or costly tasks on copyrighted proprietors. This subject is further discussed below in connection with the characteristics of specific kinds of computer-readable works.
5.6 COPYRIGHT IN COMPUTER-READABLE DATA BASES
A data base, in many cases, is a "compilation." In copyright terminology, a compilation "is a work formed by the collection and assembling