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new technologies developed after the statutes were enacted. These are not, of course, the only conclusions that might be drawn from the cases and events cited:

1. It seems certain that technologies now in their infancy or now unknown will, at some future time, result in new products or processes that will raise copyright questions not provided for specifically in the Copyright Act of 1976 (or the earlier statutes). The 1976 Act attempted to take into account recently developed technologies and their foreseeable applications affecting copyright. Even here the new Act did not succeed completely: As is shown in Section A.4 of this report, the problems concerning uses of copyrighted works in computer systems (which were discussed during the Congressional hearings in 1965 and 1967 on the copyright revision bills in the light of what was then known or anticipated as to such computer uses) were considered not sufficiently crystallized or understood to allow the formulation of legislative rules; instead, Congress provided (in P.L. 93-573 enacted in 1974) for the establishment of a National Commission (CONTU) to study these problems and make recommendations for appropriate legislation. And there will no doubt be other copyright problems raised hereafter by new technologies of the future that are completely unforeseen now.

2. Past experience indicates that the problems raised in the future by new technologies will be brought before the courts for decision as to how the terms of the 1976 Act are to be construed in their application to the new situations. The courts will be expected to make definitive rulings on many new issues involving such questions as the copyrightability of works produced in new ways or in new forms, and the rights of copyright owners and users with respect to uses made of copyrighted works by new methods or in new media.

3.

The courts will probably differ among themselves in the basic approach they take to the application of the 1976 Act to the new situations. The decisions reviewed illustrate two main approaches:

(a) One is to expound the philosophy that the copyright law is intended to stimulate the creation and dissemination of works of authorship by giving to authors (and their successors as copyright owners) the economic rewards that are afforded by the market for the various uses that may be made of their works; the courts taking this approach have looked for analogies between the situations clearly provided for in the statute and the new situations, and, finding such analogies, have tended to hold that the new situation comes within the intended scope of the statutory provisions.

(b) The opposite approach has been to construe the statute narrowly as referring to the situations known at the time of its enactment; the courts starting with this premise have generally been concerned with the restrictions that copyright was seen to impose on socially beneficial new developments, if applied to them, and have considered that the extension of the statute to these new developments should be left to Congress.

The review of the court decisions in this study can be taken to indicate that, on the whole, the courts have been more inclined to take the first approach, particularly in the usual case where the issue appeared to be capable of satisfactory resolution by deciding simply whether the work or the use involved was or was not subject to copyright under the statute. The courts have taken the second approach when they were faced with a choice between holding for complete copyright liability or none, against an important new industry or use whose development or very existence was thought to be jeopardized if complete liability were imposed, and where legislation on the issue appeared imminent. (The majority opinions in the White-Smith case, in the Court of Claims decision in the Williams and Wilkins case, and in the Supreme Court decisions in the Fortnightly and Teleprompter cases illustrate the second approach; all the other decisions reviewed -- excluding some district court decisions that were reversed on appeal -- illustrate the first approach.)

4. Where the courts have held that the earlier copyright statutes extend to the products or uses resulting from new technologies developed later, Congress has generally adopted the same position in subsequent legislation. Where the courts have refused to extend the earlier statutes to new uses of copyrighted works because of the danger that imposing full copyright liability would result in unduly harmful consequences to the users or to the public. Congress has provided in subsequent legislation that such uses are to be brought under copyright, but subject to special exceptions or special conditions and limitations designed to forestall those harmful consequences, while giving copyright owners the measure of protection still possible or, at least, compensation for the new uses of their works.

5. Where a clear yes-or-no answer on a question of copyright protection or copyright liability will solve a problem raised by new technology, the problem can be, and is likely to be, resolved by judicial decisions construing the existing statutes. But where the problem is quite complex, with compelling economic or social interests on both sides to be safeguarded and reconciled, the slow and cumbersome process of legislation may be required to formulate a multifaceted set of basic rules

together with special conditions, limitations, exceptions, etc., peculiarly tailored to fit the differing needs of the several interest groups concerned. And it may be extremely difficult to enact legislation of this nature unless and until the interest groups are ready to agree or to accept the main features of the proposed legislation. (These observations regarding legislation are illustrated by the provisions in the 1976 Act on photocopying and on cable television.)

6. On some questions of how the existing statutes apply to the products of new technology, where the question is fairly uncomplicated and the justice of the answer given is fairly clear, a ruling by the Copyright Office or a practice adopted by an industry group may be sufficient to settle the question for all concerned.

A.1.3.4 Providing Technological Expertise to the Judiciary. When courts have needed to be informed concerning matters of esoteric technology, they have generally been provided with the technological expertise pertinent to the issues in the case before them through such established procedures as the testimony of expert witnesses, physical demonstrations of technical devices or processes, briefs or memoranda presented by counsel, and research conducted by the court or its aides. Those procedures have apparently been found adequate in most litigation, including the usual run of copyright cases.

If other means were considered to be necessary, in extraordinary cases, to provide technological expertise to the judiciary, several other mechanisms might be given consideration:

1. The establishment of a special court or system of courts to deal with cases involving highly complex and sophisticated technological issues. Prototypes of such courts now exist in the Court of Customs and Patent Appeals, the United States Tax Court, and the special State courts established to deal with juvenile and domestic relations cases.

2. Having specialists in the fields of science or technology involved attached to the staff of the court or available to serve as consultants to the court. Many of the juvenile and domestic relations courts now employ specialists in the medical, behavioral, and social sciences as staff members or consultants.

3. Making available to the courts the expertise of the wide range of scientific and technological specialists employed by the various Government agencies.

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We do not believe any such special mechanisms are needed in copyright litigation involving new technologies. The judicial decisions in copyright cases dealing with new technologies as exemplified by those reviewed in this study -- indicate that the courts have been adequately informed, through the judicial procedures now used, concerning the new technologies involved, to reach intelligent and appropriate judgments.

A.1.3.5 STI Systems and Copyright Law. The authors, after reviewing the general principles that the courts have applied to copyright issues, and the historical impact of new technologies upon the copyright statutes, examined computerized STI systems in relation to the copyright law.

A.1.3.6 Groups Interested in STI Systems. The interest groups having, primarily and most directly, a financial, professional or service interest in the copyright issues relating to the generation, dissemination, or use of STI systems include:

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Authors of various kinds of works, principally textual
and graphic works in the field of science and technology.

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Commercial and nonprofit publishers of journals and of books and monographs of a scholarly or informational character.

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Producers and publishers of compilations of bibliographic and factual data.

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Libraries, especially large research, university, and industrial libraries.

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Educators and students, especially at the college and university levels.

Industrial and nonprofit research organizations and individual researchers.

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Organizers and operators of computerized information service systems.

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These groupings could, of course, be arranged in other ways, and there is considerable overlap among the groups as listed above.

A.1.3.7 Orientation of Suppliers and Users of STI Systems. From the standpoint of their copyright interests, the various groups may be divided into two broad categories: (1) authors, producers, publishers, and other suppliers of copyrightable materials, who are interested in having copyright protection and in receiving compensation for the uses of their works; and (2) researchers, educators, scholars, libraries, and other users of copyrightable materials, who are interested in having access to and use of those materials.

The differing needs of copyright owners on one hand and users of copyrighted materials on the other hand, are usually met by contracts negotiated in the open market. The desire of copyright willingness of owners to derive revenue from the market for their works, and the willingness of users to pay reasonable fees for the use of those works, have generally operated to make the market place responsive to the needs on both sides. In most situations the system of freely negotiated contracts should work to meet the needs of the owners and users of copyrighted works used in computerized STI systems.

In certain situations involving the use of copyrighted works in other media, problems of accommodating the needs of both owners and users have called for special treatment, either through voluntary systems for centralized or blanket licensing or through statutory provisions for compulsory licensing. These special methods of accommodation are discussed in the report as outlined below.

A.1.3.8 Copyright Law and its Impact upon Computerized STI Systems. Among the conclusions reached in this study concerning the application of the copyright law to computerized STI systems are the following:

A.1.3.8.1 Copyright Protection for Computer Programs. Computer programs generally are subject to copyright protection. The protection afforded by copyright is limited to reproduction of the program in its substance. Copyright would not protect the processes or techniques revealed in the program.

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