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A.1.3.8.2 Copyright Protection for Data Bases.

1.

In general, data bases, whether in printed or machine-
readable form, are copyrightable as compilations.

2. Complying with the requirements of copyright notice and

deposit of copies, as may be necessary for effective
copyright protection, may call for some special procedure
in the case of data bases in machine-readable form, and
in the printout of material from data bases, but no
insuperable difficulties in this regard are seen.

A.1.3.8.3 The Production of Data Bases.

1.

The indexing of documents in order to compile a biblio-
graphic data base can be done manually or by using a com-
puter. If done by computer, the indexer must have the
documents in machine-readable form. If the documents are
copyrighted, the indexer would apparently have to obtain
machine-readable copies from the publishers, or to obtain
permission from the publishers to make and use his own
machine-readable copies, for indexing. It has been
argued that where the publishers cannot supply machine-
readable copies, an indexer should be permitted by law to
make his own, for the sole purpose of indexing, as a fair
use or, alternatively, under a compulsory license.

2.

The typical abstracts in data bases are no more than brief
identifying statements of the subjects covered in the
document; making such abstracts of copyrighted works is
not an infringement. However, a so-called "abstract" that
is actually a digest of the substance of a copyrighted
work, sufficient in detail to substitute for the work it-
self, would constitute a derivative work, and making such
would infringe the copyright.

A.1.3.8.4 The Use of Copyrighted Data Bases in Computerized Systems.

1. Where a system operator obtains a machine-readable data

base from the publisher, the lease agreement between them
will generally include (expressly or impliedly) a license
for the operator's use of the data base in his system.
Such agreements will usually serve to settle the copyright
questions that would otherwise be expected to arise.
Where the publisher offers machine-readable copies, a sys-
tem operator who makes his own copy instead of obtaining
one from the publisher should be considered an infringer.

2.

Where the publisher of a copyrighted compilation of data does not offer machine-readable copies, an operator who wishes to place that compilation in his data base system should be expected to ask the publisher to make and supply a machine-readable copy or to permit the operator to make one for use in his system. Where the publisher then refuses or fails to accede to such request, a valid argument could be made for a compulsory license.

3.

It can be assumed that the publishers of machine-readable copies of copyrighted compilations of data will generally lease them, but not sell them, to system operators. An operator who is offered such a copy from a third person should therefore be suspicious of its legitimacy, and should be held liable if he acquires such a copy that was made or supplied to him in violation of the copyright.

4.

If a system operator makes his own machine-readable copy
of a copyrighted compilation or acquires a copy legi-
timately from a third person, he will need to obtain a
license from the publisher to use it in his system. There
are good arguments for requiring the operator in this
situation to obtain such a license before putting the data
into his system.

5.

If a license for the use of a copyrighted data base in a
system has not been obtained earlier, the operator would
need to obtain a license for the output of material from
the data base. In the absence of a license, the extrac-
tion of a small fragment of a data base by a user of the
system on one occasion would appear to qualify as a fair
use; but the aggregate of the output of fragments on
many occasions would appear to constitute an infringement
by the operator of the system.

6.

If a user of a system were to extract from it an entire copyrighted data base or a major part of it, he would be infringing the copyright. Practical arrangements for preventing and detecting such infringements seem feasible.

A.1.3.8.5 Exclusive and Compulsory Licenses for the Use of Data Bases. In order to facilitate the development of computerized systems that will contain all the data bases needed for comprehensive coverage of any subject area, and also to prevent the monopolization of data base search services by one or two systems, consideration should be given to a scheme for precluding exclusive licenses for the use of data

bases in individual systems. One such scheme would be a statutory provision for the compulsory licensing for use in all systems, of a data base licensed for use in any one system.

A.1.3.8.6 Full-Text Storage and Retrieval of Documents in Computerized Systems.

1. The questions as to input and output of copyrighted docu

ments are substantially the same as those pertaining to
the input and output of copyrighted data bases. The dis-
cussion and conclusions in this study relating to data
bases are applicable generally to the computer storage and
retrieval of the full text of documents.

2.

There has been considerable discussion as to whether the
input of copyrighted documents should be free, with a
license and payment to the copyright owner being required
for output, or whether a license should be required be-
fore input. The arguments advanced on both sides are
presented in this report. The authors of this report
are impressed most by the argument that, since a license
will admittedly be required for output, practical con-
siderations suggest that the terms of the license, in-
cluding the basis for assessing fees, should be settled
between the parties before the operator of the computer
system begins the process of using the material.

A.1.3.9 Unique Characteristics of Computerized STI Systems. It can be deduced from the analysis of copyright questions relating to the use of copyrighted works in computer systems that such uses present special characteristics not present in the traditional ways of using copyrighted material. The following special features of computer uses seem particularly significant:

1. Copyrighted works in their usual form of printed pages are

usable in that form in other media, but must be converted to machine-readable form for use in computer systems.

2.

The availability to researchers and other users of the works placed in a computerized STI system will tend to displace the market that would otherwise exist for the sale of copies of the works to them.

3. Computerized STI systems, to realize their potential value

for research, must seek to include comprehensively the whole body of works extant in any particular field of science or technology.

4.

Exclusive licensing of copyrighted works for use in one
STI system could have two undesirable results: (1) It
would prevent other systems from attaining comprehensive
coverage of the whole body of works in a particular
field, thus putting researchers to the inconvenience of
searching through several systems; and (2) It would tend
to foster the monopolization of STI system services to one
or two giant systems.

The first two of these special features would seem to indicate that the copyright law should recognize, as it now appears to do, that the conversion of copyrighted works into machine-readable form and their input and output in the operation of computerized STI systems require the consent of the copyright owner. The last two of these special features would seem to indicate that there may be a need to establish, at least in some situations, either voluntary "clearinghouse" systems for the blanket licensing, on a nonexclusive basis, of the use of copyrighted works in computer systems, or a statutory system of compulsory licensing for the use of such works in those systems.

A.1.3.10 Clearinghouses and Compulsory Licenses. The clearinghouses operated by the American Society of Composers, Authors, and Publishers (ASCAP) and by Broadcast Music, Inc. (BMI) for the blanket licensing of public performances of musical compositions, have frequently been cited as possible models that might be adaptable for the blanket licensing of reproduction rights in journal articles and other works. The operation of these two organizations and the factors that have contributed most importantly to their effectiveness are outlined in this report. Some of the major problems that would be faced in attempting to establish a clearinghouse for the reproduction of journal articles are mentioned and some approaches for meeting those problems are suggested in the report.

Provisions for a compulsory license for the recording of copyrighted musical compositions were enacted in the Copyright Act of 1909. That compulsory license was designed to prevent the establishment of a monopoly in making recordings of music under exclusive licenses that would otherwise have been granted. One of the practical consequences of these compulsory licensing provisions, incidentally, has been the voluntary establishment by music publishers of a centralized agency (the Harry Fox Office) for the issuing of negotiated licenses on standard terms for the music of most of the major publishers.

The Copyright Act of 1976 provides for compulsory licenses of a different character in three additional situations: for the performance of music in jukeboxes, for CATV retransmissions of broadcasts of copyrighted material, and for the use of certain works in noncommercial broadcasting. These three compulsory licensing systems are examples of blanket, nonexclusive licensing established by statute. The purpose of the compulsory license in these three instances is not to prevent a monopoly, but is to avoid the difficulties and high transaction costs that would be entailed if the user groups had to obtain licenses from and pay fees to the individual copyright owners.

If a voluntary clearinghouse satisfactory to both copyright owners and users can be organized, that would seem to be preferable over a st tutory compulsory licensing scheme. Among other reasons mentioned for this preference, perhaps the most important is the greater flexibility of a voluntary arrangement and its easier accommodation, by negotiations between the groups concerned, to experience and changing circumstances.

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