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1.

EXECUTIVE SUMMARY AND CONCLUSIONS

1.1

ORIGIN OF THIS STUDY

This study began in October, 1974, and has been sponsored by the Division of Science Information of the National Science Foundation. The problem seen at that time was that copyrighted works were being fixed in computer-readable media and the copyright law concerning the use of such works was unclear. The copyright law had not been fully revised since 1909, a time when the possibility of copies of literature fixed in media that would make the copies invisible to the unaided eye was unthinkable.

A major issue in 1974 and for several previous years was whether a copyright owner deserved compensation when his work was first encoded into electronic form, or for the time it continued to be stored, or only upon each instance of a hard-copy being created. In addition, a sense of urgency had been created at Congressional hearings in 1967 with predictions that in the near future, hard copy distribution of technical books and scientific journals would be replaced by a single copy, converted into computerized form, being replicated at hundreds, perhaps thousands of remote terminals. The implications for copyright owners were severe. As a result of those conditions, what was desired was a multi-disciplinary, "policy-oriented" study which would clarify the issues, including the issue of economically-sound, technical mechanisms in such automated systems that would enable reporting of the data on which royalties could be based.

However, the National Commission on New Technological Uses of Copyrighted Works (CONTU) was established at the very end of 1974, with the function of recommending to Congress changes in the copyright law with respect to uses of copyrighted works in conjunction with computers. In October, 1976, the General Revision of Copyright Law was enacted, which did much to clarify the rights of copyright owners to their works when fixed in any tangible medium, but did not finally resolve the issues of computer-readable works.

CONTU has not yet submitted its recommendations to Congress, and the copyright laws with respect to computer-readable works will remain ambiguous until Congress acts on those forthcoming recommendations.

This study analyzes the issues of copyright in computer-readable works and is pertinent to current policy considerations.

1.2 CONTENT OF THIS REPORT

The purpose of this report is to present the results of the study, and to recommend mechanisms that will maximize the long-term availability of computer-based information.

The subject of this study does not concern an activity in which there

is a comprehensive or coordinated investment program aimed at achieving a specific goal. Consequently, recommendations are not based on a quantification of benefits and a resulting cost-benefit comparison. In order to establish a firm basis for recommendations, basic principles of copyright have been surveyed; and an analysis has been made of the impact of information technology on copyright law as that technology has advanced during the twentieth century. In addition, fundamental concepts of economics have been reviewed to assure that recommendations are well-grounded in that discipline.

As an outcome of the evaluation of fundamentals, and of the historical analyses, it has been possible to enumerate a set of basic principles that are employed as the foundation of the recommendations. In addition, insights have been developed and conclusions drawn about the reduction of transaction costs, the impact of technological change and about the existing and expected mechanisms of policymaking in copyright. It is hoped that the recommendations and conclusions will be of value to decisionmakers, as well as to policy analysts and researchers. Certainly the findings, conclusions and recommendations of this report are not to be taken as the final, definitive view. Other analyses of the legal and historical precedents may reveal different interpretations and consequently different conclusions and recommendations. Additional contributions to the literature are welcomed.

1.3 FINDINGS OF BASIC PRINCIPLES

1.

The concept of common law copyright conforms to the philosophy of the Enlightenment, enunciated by Locke, that each person has the right to the fruits of his creations.

2.

Due to the inherent rights in the copy, an intrinsic market failure results from the ease of copying or plagiarism of intellectual property. Correction of the failure requires the public good of statutory copyright protection.

3. The principle of inherent ownership and consequent statutory

protection do not imply a value judgment as to the relative merit of an individual work or the inherent right to financial remuneration. The economic value of a work is to be determined in the marketplace where copyright protects the distributors of intellectual works as well as the creators.

4.

If free economic competition is possible, opportunities for it should be maximized, including opportunities for entry of new products and new competitors.

5. Copyright protection assumes the concept of the quid pro quo

of a social contract. The application of this concept requires
that in return for protection of law, the copyright holder
makes a public disclosure of his work.

6. The dissemination of scientific and technical information should

be maximized, subject to resource constraints, excepting where such principles as personal privacy, trade secrecy and national security take precedence.

7. There would be transaction costs attached to any market, includ

ing the market for intellectual property, even if there were no copyright protection. The trade-off in structuring a market is in the kinds of transaction costs a society is willing to tolerate, as well as in the size of such costs. All other things being equal, the size of transaction costs should be minimized.

8. Decisionmaking on copyright involves the achievement of a bal

ance of equities between user needs and owner rights that
should include consideration of the general public as well.

1.4 RECOMMENDATIONS FOR IMPLEMENTATION

1.4.1 Computer-Readable Data Bases

1. Computer-readable data bases, whether compilations, collective

works, or reference works of a single author should be copyrightable in any tangible medium of expression.

2. Complete disclosure of the contents of the data base to the

Copyright Office should be required, in some tangible medium, when the data base is initially registered.

3. Deposit requirements for data-base updating should be satisfied

by a yearly submission of a complete list of additions and deletions. At some multi-year interval, e.g. ten years, a complete re-disclosure should be made if the data base has been frequently updated.

4.

Clarification of what constitutes publication of a data base is needed when a data base is distributed only in computer-readable form via a terminal query system through one or a very few specifically-licensed computer systems.

1.4.2 Computer Programs

1.

A computer program written by a person in a source language, with or without the assistance of a computer, generically qualifies as a work of authorship. An original computer program should be copyrightable in source language in any tangible medium of expression. Machine (object) code should not qualify as a source language.

2.

Disclosure of the computer program upon copyright registration should be accompanied by definition and usage manuals for the computer language and dialect in which the program is written, if such information is not on file already with the Copyright

Office.

3.

The transformation of a copyrighted computer program into object code from source language should be considered to be the making of a copy, even if the translation requires the implementation of some housekeeping functions such as the selection of peripheral units, storage allocation and the assignment of absolute addresses.

4. The translation of a copyrighted computer program into a com

pletely different source language (not just a dialect or variant) should constitute the authorship of a derivative work.

5.

The duration of copyright protection for computer programs should be no less than the duration of protection of other original works of authorship, in order to promote the use of computer languages that can be expected to endure regardless of changes in hardware technology.

6. Decisionmakers should be aware that assignment of computer pro

grams to a particular category of copyrighted work forces the adoption of the limitations on exclusive rights already inherent in that category. For example, categorization of a computer program as a "literary work", rather than as a separate copyrightable category assigns to computer program users the exemptions to exclusive rights granted to users of literary works in Section 110 of the 1976 General Revision of Copyright Law.

7.

The flowchart of a computer program ought to be separately copyrightable as a pictorial work, but it ought not to be able to employed to support an infringement charge against another program that employs the same flowchart unless the flowchart is sufficiently detailed so as to mirror the specific expression of the original program.

1.4.3 Transfer of Ownership of Copies of Computer-Readable Works

1. Outright sale of computer-readable works, i.e. transfer of own

ership of copies as distinguished from lease or rental with permissions, should be promoted so as to reduce transaction costs.

2. In order to effectively use a copyrighted computer-readable

work, an owner of a copy should have the right to make and retain additional copies for his internal use (which would have to be destroyed when and if he resold the work), and should have the right to use a copy in a computer. The right of internal use should not include the right to make the work available to outsiders via a computer network or otherwise. The assignment of usage rights to purchasers should not prevent

copyright owners from retaining all exclusive rights in situations not involving transfer of ownership of copies.

1.5 CONCLUSIONS

1.5.1 Technological Change and copyright

1.

An essential point at issue, as seen by decisionmakers in copyright policymaking, is the definition of the boundaries of the property right, regardless of the specific technologies involved.

2. A major effect of technological change is that it causes ambi

guities in some of the definitions of property rights that may

have seemed perfectly clear before the change. 3. An effect of successful technological change is a multiplication

of interest groups organized around the new technologies. The increase in number of interest groups causes an increased incidence of inter-group conflict. This often results in additional rules as well as more complex rules regulating group interactions.

4.

It seems inescapable that "a complex civilization necessarily develops complex political arrangements" if each interest group is granted a certain legitimacy through a democratic process.

1.5.2 Judicial Decisionmaking Under Technological Change

1.

One viewpoint taken by the Federal Courts in copyright litigation is that if the general concept of the law then in effect can be extended to the new situation without stretching the law's meaning too far, it should be done. This interpretation is more likely to be employed when the decision so taken will not extend much beyond the boundaries of the specific case at hand, that is, will not affect the balance among interest groups.

2. A second viewpoint is that stretching the law's meaning (or

specifically defining the ambiguous) beyond a certain point would be for the Federal Courts to take on a responsibility better left to Congress. This viewpoint is more likely to be taken in a situation in which a decision has ramifications beyond the particular litigants, i.e., affects the balance among interest groups.

3.

In taking the second viewpoint, the Courts apparently recognize that Congress is much more capable of implementing a flexible solution involving give and take among interest groups, while the Courts are simply required to give a right-wrong solution. Therefore, it appears that the Courts have decided these cases

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