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or the regulatory control of a permitted monopoly as a public
service organization would be preferable is an open question.

"From the standpoint of providing maximum service for re-
searchers, and at the same time preventing the development
of a monopoly . .., the ideal situation might be the devel-
opment of a number of competing systems, each of which can
offer comprehensive coverage of any subject area. One way
of encouraging such a development would be to provide for a
compulsory licensing scheme under which a data base made
available for use in any one system would thereupon become
available for use in all other systems.

"Whether a compulsory licensing scheme is needed and
whether is would be desirable, are debatable issues . .

It seems reasonable to suggest that a valid research subject at this time is the economics of provision of data base information in computerized form, considering both the incentives for innovation and the potential for monopoly pricing.

5.7 COPYRIGHT IN COMPUTER PROGRAMS

Some of the questions concerning the copyrightability of computer pro-
grams are first listed below and then are considered individually in
some detail. These questions are:
(a) Is a computer program a writing of an author and thus eligi-

ble for copyright protection under the Constitution?
(b) Is a computer program a "literary work"?
(c) Can a computer program be sufficiently "original" that it

meets the requirements for a copyrighted work?
(d) Should a program in object code be treated any differently

under copyright than a program in a source language?
(e) is protection of the specific expression of a program but not

the underlying conception sufficient protection to be valuable?

(f) Should copyright protection be denied computer programs on the

basis of the strength of the software industry?

(g) How long should protection last, if a program is copyright

able?

(h) What should be a buyer's usage rights in a program?

5.7.1 The Program as the Writing of an Author

In general, a computer program is written by a human being, and is written in a specific formal language. Those persons engaged in the occupational specialty of writing programs are known as programmers. Others engaged in the tasks of determining requirements for and blocking out the logical flow of programs may be known as systems analysts. However, engineers, scientists, and others. may write programs in the course of using a computer to assist them in solving problems in which they are engaged. In the United States today, there are probably several million persons who can comprehend at least superficially a computer program written in FORTRAN, a widely-used programming language.

In opposition to the copyrightability of computer programs, the point has been made that a computer program is a set of instructions for a machine, and in fact, according to this view, since the machine cannot operate without the program, the program is really part of the machine. Thus, programmers are really engaged in machine design, according to this argument, and the output of their work is more appropriately protected under a different legal mechanism than copyright.

Several points can be made in rebuttal to this line of reasoning. First, there is nothing inherent in a computer program that cannot be carried out by human labor, given either enough time or enough people to undertake the work. That is, the computer program written by a programmer is a set of instructions understandable by other persons; and it consists of individual steps that are possible to accomplish by humans, if time restraints are relaxed. The only capabilities needed to carry out the instructions of a program written in a typical source language, besides an understanding of the language, are (a) the ability to distinguish negative, zero and positive numbers, (b) the ability to perform arithmetic and elementary Boolean algebra, and (c), the ability to correctly select the next instruction, given explicit and unambiguous directions as to where to find it. It hardly seems fair to the author of such a set of instructions or to the public interest in economic efficiency to deny Government protection to the author's expression simply because, for purposes of speed and accuracy, the instructions are to be carried out by machine instead of by human labor.

If it is to be put forward that computer programs are not in a language in which humans speak to each other, that point can be accepted without damaging the case for copyrightability. Categories of works now copyrightable include musical works (that is, sheet music not necessarily including any accompanying words); pantomimes and choreographic works; and pictorial, graphic and sculptural works. None of these communicate to humans in natural language. Certainly included in the category of pictorial and graphic works are engineering and architectural drawings and schematic diagrams, all of which can be employed as instructions to those persons engaged in the construction of machines, devices, and structures.

Close to the concept of the computer program is musical notation and similar notations for sequences of choreographic motions. Musical notation is, in essence, a set of instructions for the operation of mechanical devices so as to produce a particular sequence of sounds, each with a particular pitch held for a particular length of time. It follows that the question whether a computer without its program is still a computer is analogous to the question whether a piano without someone playing it is still a piano. Discussion of such a question is not likely to be fruitful in the present context.

It may be helpful to point out, however, that a computer program is more than simply a set of instructions used to operate a machine. Computer programs are involved, in their operational use, in a variety of real human purposes. Some of those purposes involve research and other professional activities, while other purposes may appear to be mundane. However, the development of a computer program that will be used in connection with any real human purpose must include an understanding of the human and physical systems with which the program will be associated. Implicit in any set of calculations that represent the real world is a model of that portion of the real world. Clearly, the computer programs now in use throughout the United States that assist physicians in the diagnosis of heart ailments on the basis of an analysis of electrocardiogram signals constitute models of the heart's operation. Similarly, but perhaps not so obviously, accountants have begun to realize that the system of financial records of an organization including the records of collections, inventory, and disbursements is nothing less than a financial model of the organization.

In effect, the computer program is an implementation of the view that the physical world and at least part of the human world is amenable to rational analysis and quantification, and to understanding deduced from these processes. Scientists, engineers, economists and statisticians must be listed among those whose core of professional work conforms to this view. No person need accept this view either in its entirety or uncritically. In fact, a world run solely on the basis of this view might very well lack fundamental and essential value judgments that cannot be deduced or quantified. Copyright protection, however, as discussed in Section 2.6, requires no value judgment as to the individual merit of a particular writing of an author; and it is clear that the source code written by a programmer is such a writing.

While the most fundamental statutory test of copyrightability is whether the category in question constitutes a writing of an author, it is useful to consider the basic principle enumerated in Section 1.3 of this report. Under these principles, this study finds that the author of a computer program is entitled to the fruits of his creation; and that the ease of copying of this form of intellectual property constitutes an intrinsic market failure requiring the public good of statutory copyright protection. In addition, this study finds that without copyright protection for computer programs, losses in information flow, increased procedures for secrecy and less opportunity for creativity

would result.

5.7.2 Computer Programs and Literary Works

Seven categories of works are now granted protection under Section 102 of the 1976 General Revision of Copyright Law. While the definition of "literary works" given in Section 101 of the new Act is broad enough to include computer programs, it is not necessary that computer programs be defined for purposes of the statute as literary works. An alternative is a new category of copyrightable work to be enumerated in Section 102, namely "computer programs."

One reason for consideration of this question is that computer programs are used in different ways than prose or poetry. The limitations on exclusive rights granted to users of literary works, for example, as specified in Section 110 of the 1976 General Revision, may or may not be appropriate for computer programs. In particular, the applicability of the limitations of Section 110 to computer programs used for computer-assisted instructional purposes is worthy of examination.

Similarly, as the uses to which computer programs are put or the manner in which they are used differ from more standard literary works, additional modifications of the copyright statute may be appropriate to specify the assignment of property rights with respect to each type of work. Categorization of computer programs separately from literary works might assist the process of specifying these differences.

5.7.3 Originality of Computer Programs

While no specific research study can be identified yielding definitive res ts that computer programs can be "original", as the meaning of that term is understood in copyright law, experience and knowledge of the field make possible an unequivocal affirmative response.

Many books have been written on the subject of how to write programs and how to write better programs. If originality were not possible, it would have been difficult if not impossible for Gerald M. Weinberg to have written the book The Psychology of Computer Programming 69 including sections on "Programming as Human Performance" and Programming as an Individual Activity." Similarly, it would have been far less likely for Dennie Van Tassel to have written on "Program Style" in his book on Program Style, Design, Efficiency, Debugging, and Testing?0 or for Frederick P. Brooks, Jr. to have written of "the joys of the craft" or of "craftsmanship" in his book on The Mythical Man-Month, Essays on Software Engineering. 71

Of course, the more complex a program's function, the greater the variety of unique ways of expressing the steps in the performance. On the other hand, it is questionable whether a program carrying out an elementary and well-defined function such as the calculation of the roots of a second-order polynomial could be considered "original." It may be

within the discretionary power of the Register of Copyrights to deny copyright to such a program on that basis. It is likely, however, that the copyrighting process will be self-regulating. Only programs having an intrinsic originality are likely to be submitted for registration.

5.7.4 Protection of Object Code as a Computer Program

The object code is the conversion into symbols usable directly by the computer of the source program written by the programmer. The basic question with respect to object code is whether it should be able to be copyrighted independently of the source code. If it were independently copyrightable as a computer program, a programmer could submit the object code to the Copyright Office for registration and never disclose the source code at all.

The point has been raised that, very likely, the sequence of ones and zeros in hard-copy form constituting the object code is, in the abstract, already copyrightable as a literary work under present law. Analogously, the sequence of numbers in a data base are clearly copyrightable and similarly, original sequences of nonsense syllables are acceptable for registration since no value judgment need be made as to literary merit. However, the concept of a "computer program" implies a sequence of instructions involving a solution to a quantifiable problem. The granting of the protection of copyright implies the right to prevent infringements and imposes responsibilities on the Government. Yet the object code (except for a program of very short length) is unreadable as a computer program by a person. It would be exceedingly difficult for the Copyright Office to assure that the object code was "original" for registration purposes and similarly difficult for the facts to be determined in an infringement action.

The registration of the sequence of ones and zeros constituting the object code could be used, certainly, to prevent unauthorized copying and use of exactly that sequence. However, many infringements of the underlying program could occur without the use of the exact sequence. For example, it would be extremely easy to shift the specific sequence while still plagiarizing the program through the insertion of a single instruction not changing the logic of the sequence, or to change the encoded addresses of operands, or to use different encodings for the machine commands. A copyright registrant might find that object code registration actually provided, as a practical matter, very little real protection.

In addition, copyright registration of object code as a computer program discloses almost nothing in return for the protection of law. Information transfer about the program is deliberately minimized, not maximized. Thus, this study finds that the independent copyrightability of object code as a computer program is not in accord with the basic principles on which its recommendations are based.

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