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in effect on December 31, 1977 (the day before the new Act becomes effective) would continue to be in effect under the new Act. Section 117 states that the new Act -
"does not afford to the owner of copyright in a work any
What the applicable law now in effect may be is uncertain, but it appears to be unlikely that any major issue of computer use of copyrighted works will require a decision in the very near future.
A.4.1.2 Interested Groups. The wide range of interest groups having a financial, professional, or service interest in the generation, dissemination or use of scientific and technical information that might be used in computerized systems is reflected in the list of persons and organizations by or for whom testimony was presented on the issues of computer uses, or whose interests were referred to, during the Congressional hearings on the copyright revision bills. The interest groups identified in those hearings and in other literature on the subject include:
Authors of textual, graphic, and other kinds of works in the various field of science and technology.
-- Commercial publishers and nonprofit publishers (such as
scientific societies) of journals in the various fields of science and technology. These journals appear to be the copyrighted works most used in scientific and technical research.
Commercial publishers and nonprofit publishers (such as university presses) of books, monographs, graphic and other materials of a scholarly or informational character. Included here would be the publishers of cyclopedic works and educational materials.
-- Producers and publishers of compilations of bibliographic
and factual data.
-- Libraries, especially large research, university, and
-- Educators and students, especially at the college and
Industrial and nonprofit research organizations and individual researchers, including professional practitioners and societies, in the various fields of science and technology.
Producers of computer hardware and software.
- Organizers and operators of computerized information service
Commercial indexing and data search services.
-- Other specialists in computer and information technologies.
These groupings could, of course, be arranged in many other ways, and there is considerable overlap among the groups as listed above. For example, educators or researchers may also be authors; some journal publishers also publish compilations of data; and a future may be envisioned in which publishers or libraries are also the operators of computerized information service systems.
A.4.2 SCOPE OF THIS SECTION
A.4.2.1 Computer Programs. We have referred above, in section A.2.7 of this report, to the availability of copyright protection for computer programs. The broad question of protection for computer programs was not intended to be a primary subject of this report; but it is tangential to some of our main subjects; and we will supplement the earlier reference to their copyrightability with a brief review below, in section A.4.3, of the extent of protection afforded to computer programs by copyright. Because, as we shall see, copyright protection is limited essentially to copying the program as written, broader protection under patent principles, extending to the process or algorithm embodied in the program, has been advocated by some parties but has been opposed by others. The issues of protecting computer programs under patent principles, or by contracts based on the law of trade secrets which some program producers have relied upon, are completely outside the scope of this report.
A.4.2.2 Data Bases. The much-heralded "information explosion" the massive proliferation of published material during the last few decades has greatly emphasized the need of scientific and technical
researchers for two capabilities; first, they must be enabled to learn of, and to segregate from the steadily growing flood of published material, principally journals, those particular articles that appear to be pertinent to their fields of research and to their current inquiries; and second, having identified the articles that appear to be pertinent, they must be enabled to obtain copies of those articles for study.
The conventional effort to meet the first need -- identifying the pertinent articles -- has been to compile and publish in printed form various kinds of bibliographic indexes and abstracts of the mass of published articles. These bibliographic publications have been indispensable research tools; but even in any one specialized field, a researcher seeking comprehensive coverage of the pertinent sources would need to review a number of indexes and collections of abstracts, which he would generally not be able to do efficiently and might often not be able to do at all, because of the high cost of acquiring all or most of the relevant bibliographic publications, and because it would take too large a portion of his working time to review all of the accessible bibliographic publications and identify the articles of interest to him.
Computer technology has offered a means of solving this problem. Bibliographic indexes and abstracts can be prepared or reproduced in the form of machine-readable data bases and placed in computerized information systems. Such computerized systems make it possible for a researcher to find and select, quickly and with a high degree of accuracy, from the mass of articles indexed and abstracted in the data bases, those which appear to pertain to the particular subject of his research. A large assemblage of data bases, coupled with a modern telecommunication system and available terminals, can enable researchers located at a distance to make a fairly comprehensive search, in a very short time, of the published articles in their specialized fields.
Several such data base systems are now in operation and some of them include copyrighted data bases leased by the system from the copyright owners. Data base systems of this character present prime examples of computerized information systems using copyrighted material. Many of the copyright questions that are seen as likely to arise in connection with the use of copyrighted material in computer systems can be posed in the context of data base systems. Those questions will be considered in relation to data base systems in section A.4.4 of this report.
A.4.2.3 Supplying Copyrighted Documents. The second of the researcher's needs to obtain the full text of the articles he finds pertinent
presents a different situation. Even though the costs of computer storage of textual materials can be expected to be reduced very substantially over the next decade or two, the cost of full-text computer storage might still be extremely high as compared with other effective means of storing a library of many articles from which copies could be provided as needed. Such other methods would include, for example, the storage of articles in microform from which reproductions (either in microform or in printed pages) could be supplied readily and at small cost by mail.
It seems highly probable that the supplying of copies of journal articles as needed by researchers will continue, for a long time to come, to be a function primarily of the publishers or their licensees. Several commercial organizations, operating under licenses from a large number of publishers, are now in the business of supplying copies of documents on order. A few of these organizations provide a data base search service, and supply copies of documents in conjunction with that service. Such arrangements will probably expand.
Insofar as publishers and their licensees do not fulfill the function of supplying copies of documents adequately and expeditiously, libraries wilt no doubt continue to be called upon to supply "photocopies". (Perhaps a library maintaining a large collection of journals will be an adjunct to a computerized data base system.) In that case, the copyright questions relating to the supplying of copies of articles to researchers will be those pertaining to library photocopying. We have already referred briefly to the copyright aspects of library photocopying in section A.2.5 of this report. Further consideration of that subject is beyond the scope of this report, except for the related matter (which pertains also to computer storage and retrieval of copyrighted works) of the possibility of establishing central clearinghouses for the mass licensing of copyrighted works for reproduction. The subject of clearinghouses wili be considered in section A.4.6 of this report.
As indicated above, it does not seem likely that computer storage of any large mass of documents will be common in the foreseeable future. However, there have been a number of instances of full-text input of copyrighted works into computers for various purposes such as analysis or indexing of the work, or reproduction of all or parts of the work for review. And there are a few instances of computer storage for retrieval of a fairly large volume of documentary material. Some computerized law research services, for example, contain the full text of many statutes and court decisions (which, it may be noted, incidentally, are not subject to copyright) together with related notes, abstracts, and commentaries (which may be subject to copyright).
We shall assume that full-text input of some kinds of copyrighted material will become more common eventually. As previously mentioned, many of the copyright questions that might arise in connection with full-text storage of copyrighted works will be similar to those that will be discussed in the context of data base systems in section A.4.4 below. The questions that we see pertaining specially to fulltext storage and retrieval will be reviewed in section A.4.5.
A.4.3 COPYRIGHT PROTECTION FOR COMPUTER PROGRAMS
As we have noted earlier, in section A.2.7 of this report, computer programs (i.e., the series of instructions which are considered to constitute a literary work) are subject to copyright protection. The doubt that was previously expressed about their copyrightability (stemming from the fact that in the machine-readable form in which programs are distributed they are not visually perceptible) has been removed by the new Copyright Act of 1976, especially by section 102(a) which reads:
"Copyright protection subsists, in accordance with this title,
The protection afforded to computer programs by copyright, however, is limited. The exclusive rights of a copyright owner to "copy" and "publish" his work, as provided in section 1 of the 1909 Copyright Act still in effect, would apply to computer programs. These same rights are embraced by the provisions in section 6 of the new 1976 Act giving the copyright owner the exclusive rights to "reproduce the copyrighted work in copies" and to "distribute copies ... of the copyrighted work to the public."
What constitutes "copying" or "reproductions may be a matter of fine distinctions. Infringing reproduction would, of course, include full, literal copying of the work as written, but it is not confined to this. Copying of a substantial and material part of a work would be an infringement, and so would copying with slight changes. Tracking of the substance and sequence of the steps set forth in a program may constitute infringement, even though many superficial changes are made (as in an effort to disguise the fact of copying).
On the other hand, it is a basic principle of copyright law that the ideas or concepts embodied in a work, even if they are original with