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Data bases should be copyrightable in any medium of expression. Clarification is needed as to what constitutes publication for a data base distributed only in computer-readable form to one or a small number of computer systems that provide user-access via a terminal query.

There is a need to review the possibility of monopoly pricing in computer-readable, data-base access services. Some of these data bases are relatively nonsubstitutable, and competitive entry in the field may be difficult. Compulsory licensing may be a remedy but innovation should not be stifled.

Computer programs should be copyrightable in human-readable form (source language) in any tangible medium of expression. The object code should be protectable as a copy of a computer program, but not as an original copyrightable computer program by itself, because it fails to disclose anything substantial. Material defining the language of a computer program should be disclosed at time of registration. For most computer programs, copyright protection is sufficient because the programs contain no innovative concepts. Further study may be worthwhile to determine the value of protecting the innovative concepts that might be contained. The duration of copyright for computer programs should be no less than the duration of protection of other works. This should promote the writing of programs in enduring languages. The definition of a program converted to a new source language as a derivative work will help extend the life of programs.

There is a need to insure a user's rights in computer-readable works if the user has purchased the work in outright sale. The sale of copyrighted works rather than lease or rental should be promoted as being lower in transaction costs. A buyer needs the right to make sourcelanguage copies for his internal use and the right to make and use object code. The buyer would not be permitted to resell more than the number of copies he had purchased nor make the work available externally to others on a computer network without permission. At the time of resale, extra copies would have to be destroyed.

6. POLICYMAKING FOR COPYRIGHT

In the course of this project, it was recognized that if conclusions were to be drawn about the applicability of copyright to computer-readable works, then decisionmaking with respect to other kinds of copyrightable works ought to be researched. Therefore, an historical analysis was undertaken, and the fundamental principles and concepts underlying copyright were reviewed.

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This historical and conceptual study has been found to be extremely useful. It has elucidated the principles of political philosophy and economics on which copyright is based. It has clarified the roles of the separate branches of the Federal Government in copyright policymaking and demonstrated their interactions. It has identified the impact of incremental technological change, thereby showing decisionmaking under increasing complexity. Finally, it has enabled copyright policymaking to be placed in the matrix of decisionmaking in general, thereby making possible an identification of the political system models with which it is most closely associated.

6.1 COPYRIGHT AND OTHER PROPERTY RIGHTS

The history of copyright presents evidence that an essential point at issue, regardless of the technology involved, is the definition of the boundaries of the property right. In this, copyright is not much different than other kinds of property, tangible or intangible. In addition, with the property right is typically associated reciprocal responsibilities. An example of the conception of property rights in this manner is presented by Walter Lippmann in The Public Philosophy; in which the concept of quid pro quo is stated to be fundamental to our system of government:

"Early in the history of Western society, political thinkers
in Rome hit upon the idea that the concepts of the public
philosophy - particularly the idea of reciprocal rights and
duties under law - could be given concreteness by treating
them as contracts. In this way, freedom emanating from a
constitutional order has been advocated....by establishing
the presumption that civilized society is founded on a pub-
lic social contract.

"A contract is an agreement reached voluntarily, quid quo pro
and likely, therefore, to be observed - in any event, right-
fully enforceable..."72

Copyright appears at first glance to be encumbered with many kinds of conditional rights and complexities, whereas other property rights may appear to be relatively clean and easily defined. Actually, this is not so. A farmer may be restrained from using insecticides if his neighbor is a beekeeper and may be induced by Government to plant or not to plant certain crops. A builder may be restrained from constructing

a factory in a residential neighborhood. Airplanes may be confined to certain corridors for purposes of noise abatement and places of business must meet many standards of safety and occupancy.

In general, the rights of property are the creation of law. Lippmann has quoted Blackstone's Commentaries on this question:

"The original of private property is probably founded in
nature....but certainly the modifications under which we at
present find it, the method of conserving it in its present
owner, and of translating it from man to man, are entirely
derived from society, and are some of those civil advantages
in exchange for which every individual has resigned a part
of his natural liberty."73

Thus, people may act from a foundation of what they believe to be naturally right, but one view is that enforcement of those rights is derived from the public social contract, through which some liberty is exchanged for some protection of law. Copyright appears to assume such a social contract.

6.2 APPLICABLE DECISIONMAKING MODELS

6.2.1 Pluralism

It seems clear that decisionmaking on copyright questions has been very much in the pluralist mode in the twentieth century. That is, conflict has been among contending factions (interest groups) gathered around different functions related to copyrighted works. For the most part, the contenders have been the primary producers, i.e., authors and their original publishers, against secondary producers, that is, those who would use copyrighted works to provide ultimate consumers with additional products and services. In general, the Congress refers to the secondary producers as "users" although they are not the ultimate consumers. The secondary producers have included phonorecord manufacturers, jukebox owners, movie makers (in the use of copyrighted music in sound tracks), over-the-air broadcasters, cable TV broadcasters, educational photocopiers (for further distribution to students), and Government librarians (for further distribution to researchers).

The ultimate consumers are usually not involved, although users of computer programs and researchers in educational institutions who use photocopies have been involved. Neither of these groups can be identified with the general public consumer of copyrighted works, e.g., the general buyers of books, records, movie tickets, concert tickets, etc.

The governmental role envisioned by the pluralist model is:

"(1) establishing rules of the game in the group struggle, (2)
arranging compromises and balancing interests, (3) enacting
compromises in the form of public policy, and (4) enforcing
these compromises."74

There is no question that Congress and the Judiciary have served these purposes in copyright decisionmaking. In fact, the idea of group compromise is no secret in this field. The 1976 General Revision of Copyright Law calls upon the Register of Copyrights to submit a report to Congress "setting forth the extent to which this section / 108 7 has achieved the intended statutory balancing of the rights of creators, and the needs of users." Thus, the balancing concept is specifically written into law in the photocopying area. Similarly, House Report 94-1476 on page 65 speaks of the definition of "fair use" Section 107_! as "balancing the equities."

The setting of the royalty rate for the phonorecord manufacturing license between the 3¢ per musical piece manufactured asked by some representatives of the publishers and writers and the 2¢ requested to be retained by representatives of the record manufacturers, and the further compromise between the Senate-passed royalty fee and the Housepassed royalty fee is an additional example. The statutory balancing of the membership of the National Commission on New Technological Uses of Copyrighted Works is another example; and in the statement contained within House Report 94-1476 on page 360, the Hon. George E. Danielson states (about Section 111) that:

".... the committee has arrived at a solution which I submit
is fair and equitable to both the owners and the users of
copyrighted materials...."

It can be reasonably expected that decisionmaking will continue in a primarily pluralist mode for the foreseeable future in order to resolve disputes in which a balance of equities is the primary consideration. Probably, the Copyright Royalty Tribunal will be aided in its efforts by a rational analysis of economic issues.

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Professor Theodore J. Lowi has defined domestic policies as falling into one of three arenas of power: distribution, regulation, or redistribution. Lowi states that:

"distribution / was I almost the exclusive type of national
domestic policy from 1789 until virtually 1890. Agitation
for regulatory and redistributive policies began at about
the same time, but regulation had become an established fact
before any headway at all was made in redistribution."75

Distributive policies are those decisions that can be made in the short run without regard to limited resources. The standard example is 19th century land policy. Distributive policies are typically capable of disaggregation so that what is being distributed can be dispensed in small units. Under distribution, indulged and deprived may be members of the same group (i.e. the winner and loser of a Government contract or grant).

Regulatory decisions normally affect an entire industry and often concern the ability of that industry to do business in the long term. Within the context of the regulatory structure, there may be distributive decisionmaking (e.g. assignment of a TV channel or an airline route), but regulatory decisions typically affect all industry members in a similar manner. Often, the regulatory policies affecting one industry are of little concern to other industries.

The redistributive arena, according to Lowi, involves issues that concern "haves and have-nots, bigness and smallness....."76 Typical issues that appear in the redistributive arena are overall tax policy and policies on unemployment and retirement income. Industry groups concerned with separated regulatory policies are likely to find a common ground in the redistributive arena.

The importance of the power arena model is in what it says about the changing nature of copyright decisionmaking. In 1790 and until about the time that Lowi dates the beginning of regulatory policies, copyright fitted neatly into the distributive arena. The contention among factions was not a primary factor. Clearly, individual copyrights have been and will continue to be dispensed in small units in the short run without regard to limited resources. In fact, copyrights (and patents) may be the ultimate distributive good since originality and creativity are essentially independent of resource constraints (although nurturing these qualities may not be). The increase in registered copyrights and patents does not diminish the stock of un-issued copyrights and patents waiting for new claimants.

While the distribution of copyrights continues, it seems clear that much copyright policymaking since the turn of the century has been in the regulatory arena, and is increasingly so. This has been due to the increasing number of secondary producer groups ("users") who have been contending the boundaries of intellectual property rights with primary producers. Each field of copyright has its own contenders, and major decisions in each field treat all producers in the same way, as the regulatory arena requires. Not surprisingly, Lowi recognizes that his regulatory arena is very close in concept to the pluralist model of policymaking.

Another factor causing an increase in regulatory policymaking in copyright is the increase in the sensitivity of public decisionmakers to monopoly and other forms of market failure such as high transaction costs; and the consequent increase in public institutions and mechanisms involved in correcting these market problems. Thus, there are now four compulsory license types within the copyright domain, a Copyright Royalty Tribunal to oversee certain aspects of these licenses, and a Federal court supervising the performing rights area. It remains to be seen if the photocopying problem can be successfully concluded with a collective mechanism that does not involve additional, permanent Federal intervention; and final Congressional action in the area of computerreadable works is yet to come.

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