Copyright in Computer-readable Works

COMPUTER SCIENCE & TECHNOLOGY:

U.S. DEPARTMENT OF COMMERCE, Juanita M. Kreps, Secretary

Dr. Sidney Harman, Under Secretary

Jordan J. Baruch, Assistant Secretary for Science and Technology

NATIONAL BUREAU OF STANDARDS, Ernest Ambler, Acting Director

Issued October 1977

ASE

Library of Congress Cataloging in Publication Data

Saltman, Roy G

(Computer science & technology) (National Bureau of Standards
special publication; 500-17)

Includes bibliographical references.

Supt. of Docs. no.: C13.10:500-17.

1. Copyright--Computer programs--United States. I. Title. II.
Series. III. Series: United States. National Bureau of Standards

Special publication; 500-17.

QC100.U57 no. 500-17 [KF3024.C6] 602'.1s [346'.73'048202854]

77-14143

National Bureau of Standards Special Publication 500-17
Nat. Bur. Stand. (U.S.), Spec. Publ. 500-17, 267 pages (Oct. 1977)

CODEN: XNBSAV

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON: 1977

For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402
Price $4. Stock No. 003-003-01843-1

ABSTRACT

The findings, recommendations, and conclusions of a policy-oriented, multi-disciplinary study of copyright in computer-readable works are reported.

The foundations of copyright are examined for basic principles, and the theory of public goods is applied to develop the rationale for copyright protection. The judicial history of copyright in the twentieth century is reviewed with respect to advances in information technology. The impact of technological change on judicial decisionmaking in copyright is analyzed.

The problem of transaction costs in the marketplace for copyrighted works is examined and methods for the reduction of such costs are described. Models of policymaking are developed which clarify the roles of interest groups and the branches of Government, demonstrating their interactions and providing insights into possible futures.

Recommendations on the conditions of copyrightability for computerreadable data bases and computer programs are presented and are based on findings of basic principles developed during the study and described in the report.

Key Words: Computer; computer program; copyright; data base; economic efficiency; information technology; policy analysis; policymaking; public goods; technological change; transaction costs.

NOTE

The conclusions and recommendations of this report on the copyrightability of computer-readable data bases and computer programs are in no way intended to imply the copyrightability of any work of the United States Government excluded by law from such protection.

ACKNOWLEDGMENTS

Contributions to this project were made by several persons with considerable expertise in diverse professional fields. On the subject

of copyright law, indispensible assistance was provided by Abe A. Goldman, retired General Counsel to the Copyright Office and by Michael S. Keplinger, originator of the concept of this project, and now Assistant Executive Director of the National Commission on New Technological Uses of Copyrighted Works (CONTU). Mr. Goldman was responsible for the legal information and interpretations contained in Appendix A and made himself available to provide additional information as the need arose. The project benefited similarly from discussions with Mr. Keplinger who, with the concurrence of Arthur J. Levine, Executive Director of CONTU, enabled additional fruitful interchanges to be held with the professional staff of CONTU. Useful discussions were held with Jeffrey L. Squires and Christopher A. Meyer, staff attorneys and with David Y. Peyton, policy analyst.

On the subject of economics, the project was assisted by Professors
Yale M. Braunstein and Janusz A. Ordover of New York University who
are the authors of Appendix B. Dr. Braunstein also wrote Appendix D.
Dr. Ordover, with Dr. R. D. Willig of Bell Laboratories, wrote
Appendices C1 and C2.

The clarification of ideas relating to public policy was assisted by discussions with Professor Patrick Eagan of the University of Massachusetts at Amherst.

Project monitors for the National Science Foundation in the Division
of Science Information were Dr. Joel Goldhar, Program Director, User
Requirements and Ms. Helene Ebenfield, Research Economist, Economics of
Information Program. The National Science Foundation Advisory Committee
consisted of Professor William Capron, Harvard University; Professor
Roger Collons, Drexel University; Dr. Eugene Garfield, President,
Institute for Scientific Information; Professor Arthur Miller, Harvard
University; Ms. Barbara Ringer, Register of Copyrights; Mr. Gerald Smith,
Senior Vice-President, Commercial Credit Company; Mr. Robert Stern, The
Conference Board; and Mr. Ben Weil, Exxon Research and Engineering
Company. Their patience, suggestions, and comments are sincerely
appreciated.

Acknowledgment of the assistance provided by any of the above persons should not be construed as necessarily implying their concurrence in the findings, conclusions, or recommendations of this report.

Roy G. Saltman
Project Director