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the Copyright Office and therefore a certain public disclosure (Section 408). For works that have been published with a notice of copyright, there is the additional requirement at the option of the Register of Copyrights, of deposit of two copies for the Library of Congress (Section 407(a)). Unpublished works and works published without copyright notice are exempt from this latter requirement. Even if copies for the Library of Congress are demanded, this requirement may be circumvented by payment of a fine of $250 plus the retail price of two copies of the work (Section 407(d)).
The advantage of registration, under the 1976 General Revision, is that it is a prerequistie to an infringement suit (Section 411); and furthermore, awards of statutory damages are permitted only for infringements occurring after the date of registration of an unpublished or a published work; or for infringements occurring after the date of publication of a work and before the date of its registration if and only if the work is registered within three months of its date of first publication (Section 412).
Thus, the copyright owner has a trade-off. If he wants the maximum Government legal protection, he must register his work and disclose it to the extent of Government requirements. If he does not wish to register and disclose it, he need not; but in that case he must depend for protection, to a large extent, on lesser remedies or on remedies available through State courts that are not equivalent to copyright protection.
5.5.1 The Extent of Disclosure Requirements
The maximum statutory requirements for registration (of a literary work) must include, in the case of an unpublished work, one complete copy, and in the case of a published work, two complete copies (Section 408(b)).
However, the Register of Copyrights is authorized to permit, for particular classes of works (with člasses defined by the Register), "the deposit of identifying material instead of copies
(Section 408(2)(1)). Furthermore, "the Register of Copyrights may by regulation exempt any categories of material from the deposit requirements (for the Library of Congress]." (Section 407(c)).
Thus, the Register has been assigned regulatory authority which has very important public policy implications.
5.5.2 The Policy Implications of Disclosure Rules
There is in this nation an underlying philosophy that information transfer should be maximized, subject to certain restraints, such as those due to personal privacy, trade secrecy, and national security. In the area of scientific and technical information, Federal responsibilities are quite clear.
The National Science Foundation Act of 1950 authorized and directed NSF to "foster the interchange of scientific information among scientists in the United States and foreign countries. "62 In the same Act, NSF was given the authority "to publish or arrange for the publication of scientific and technical information so as to further the full dissemination of information of scientific value consistent with the national inter
In a report of the President's Science Advisory Committee, 1963, known as the Weinberg Panel Report, it was concluded that "transfer of information is an inseparable part of research and development."64 In a report of the National Academy of Sciences, the SATCOM report, 1969, recommendations were made to insure effective communication of scientific and technical information; 65 and in the "Greenberger Report" of the NSF and the Federal Council for Science and Technology, 1972, technical information was referred to as "a vital national resource.
The importance of information flow to modern society has been noted by important observers such as Daniel Bell and Peter Drucker. Bell has written that the United States is the first postindustrial nation and that "a postindustrial society is organized around information and utilization of information in complex systems, and the use of that information as a way of guiding the society."67 Drucker has concluded that "knowledge, during the last few decades has become the central capital, the cost center, and the critical resource of the economy. . Free trade in goods ... is important. But free movement of capital and free movement of knowledge may be more important still."68
It would seem, therefore, that there is a strong public interest in maximizing disclosure on two counts: first, for the maximization of information transfer about original works, with all the implications for additional creativity that this implies; and second, to make meaningful the exchange of full protection of copyright for disclosure through registration. If registration is to imply a minimal disclosure, then the proprietor is capable of obtaining two opposite types of protection, surely not the intent of Congress. A permission for minimal disclosure would give full copyright protection; but, would permit the proprietor to maintain his work essentially secret, particularly if he makes it available through lease agreements only with restrictive disclosure clauses.
It is hoped that provisions for maximum disclosure in the public interest can be worked out without imposing difficult or costly tasks on copyrighted proprietors. This subject is further discussed below in connection with the characteristics of specific kinds of computer-readable works.
5.6 COPYRIGHT IN COMPUTER-READABLE DATA BASES
A data base, in many cases, is a "compilation." In copyright terminology, a compilation "is a work formed by the collection and assembling
of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship" (Section 101, (Definitions), 1976 General Revision). Compilations are copyrightable under Section 103 of the 1976 General Revision, but the copyright is in the organization of the materials and not in any used materials that are in the public domain or are already copyrighted. Copyright in the compilation does not imply any exclusive right in the preexisting used materials. As examples, a telephone book, a gazetteer, and an almanac are all compilations in which copyright subsists primarily in the organization of the materials and not in the individual materials contained therein.
This type of work has been given copyright protection in human-readable form as a type of literary work, one of the categories of protectable subject matter.
As the House Report 94-1476 makes clear (on page 54),
"The term 'literary works' does not connote any criterion of
The House Report goes on to state that "computer data bases" are also literary works with the implication that they are copyrightable, but for certainty about that question, the caveat "in the absence of Section 117" should be added. In the long run, however, Section 117 is certain to be excised or significantly altered, and therefore the caveat will be rendered moot. There seems to be no serious opposition to the copyrightability of compilations in computer-readable form.
Other literary works of a factual nature for example, encyclopedias and other reference works, may be used and treated as data bases even though copyright may subsist in the literary expressions in the entire works. A work of this type may be either a "collective work" like an encyclopedia, or a reference work on a specialized subject by a single author, e.g. Nimmer on Copyright. Copyrightability in the computer-readable form of the work is just as clear for these works as it is for compilations. The following discussion will concern computer-readable data bases in general without regard to their subcategory as either compilations, collective works, or literary works of a single author. The important connecting element of all of them is how they are used.
5.6.1 Publication Only in Computer-Readable Form
There may be some question as to what constitutes publication of a computer-readable data base that has not been published previously in a paper edition. It is assumed that the date of publication of a computer-readable data base that has been published previously in a paper edition without any change in content is the same date as that for the paper edition.
126.96.36.199 Display Only, Single Licensee: The particular situation of interest here is that in which the data base is made available only through user terminals attached to a central computer. This is a typical method of permitting accessibility. It is assumed that the central computer is owned either by the copyright proprietor or by a distributor who has obtained the data base from the proprietor under an exclusive license.
Now, if either the proprietor or the exclusive licensee make the data base available by display only at the terminals and do not permit printouts to change hands, no publication has occurred. The basis of this statement is the definition of "publication," in Section 101, and the explanatory material in House Report 94-1476 at page 138 and Senate Report 94-473 at page 121. (The pertinent sentences from both reports beginning "Under the definition in Section 101. . ." are identical):
First, the definition states that "display of a work does not of itself constitute publication. Thus the proprietor's display is not publication. However, the definition also states that "the offering to distribute copies ... to a group of persons for purposes of further distribution ... or public display, constitutes publication." Thus, distribution to a single exclusive licensee for display purposes only is not publication (since a single individual is not a group).
Suppose the proprietor distributed the data base to two or more licensees for display only. Whether this constitutes publication depends on how many licensees constitutes "a group" The answer to this question had best be left to the Judiciary or to further Congressional interpretation.
188.8.131.52 Printouts at Terminals: If users at terminals are permitted to make printouts of retrieved material, without any "explicit or implicit restrictions with respect to disclosure of the contents," then publication has occurred. The argument could be made that if restrictions are placed on disclosure or distribution of the printouts, then no publication has occurred. However, since the concept of "publication" is no longer central to copyright, extended analysis of particular situations is unwarrented at this point. In any event, it would be expected, if there is a likelihood that a printout would be considered "published," that a proprietor or a licensee would be sure to have the computer mark each printout with a complete notice of copyright to insure that proprietary rights were protected under Chapter 4 of the 1976 General Revision.
184.108.40.206 Identity of the Publication: The question of exactly what has been published remains to be discussed. The printouts, if provided under no restriction, are published material. The physical printout belongs to the user who paid for it. The copyright ownership of the printouts belongs to the proprietor of the data base. This is not unusual. When a book is purchased at retail, the buyer owns the book and the publisher continues to own the copyright in the content.
The argument could be made that only the printouts have been published and the data base has not been published. After all, only the printouts have changed hands; and it is assumed here that the proprietor or his exclusive licensee have retained control of the full data base. In the manner in which data base systems are operated, a user identifies a particular set of categories of information in which he is interested and queries the data base. The data base system responds with the number of items in the set, and on command, the text retrieved is shown on a CRT terminal. If the user is satisfied with the text retrieved, he requests a printout. It would seem that the printout is a "derivative work," similar to an abridgment or condensation (see Section 101 for definition), and there appears to be no requirement that a published derivative work be based on a published preexisting work. On the other hand, each printout may be different, depending on the specific query which the user has entered into the computer. Thus, the published "derivative works" may be one of a kind.
220.127.116.11 Needed Clarification: It seems reasonable to suggest that a clarification of what constitutes publication of a computer-readable data base is in order. For example, a reasonable understanding is that a computer-readable data base is to be considered "published" in its entirety if it is offered to the public on a query basis such that any item in the data base is capable of being retrieved and printed out and the printouts become the physical property of the users on the basis of unrestricted disclosure. Furthermore, "publication" occurs in this situation whether the offering to users is made by the proprietor or his licensee.
Additional clarification appears to be needed, also, in the definition of how many persons constitute "a group of persons" as the number of distributors to whom a work has to be offered in order to be published. Furthermore, it does not seem to be clear if a work is "published" if it is offered to a group of persons on a restricted-disclosure basis for further distribution on a restricted-disclosure basis.
5.6.2 Statutory Deposit to the Library of Congress
As was indicated in Section 5.5 above, there are valid public policy considerations that suggest the maximum disclosure of copyrighted works in return for copyright protection. There is no reason to exempt computer-readable data bases from these considerations.
The Library of Congress could be viewed in this connection as an archival location where anyone could view and peruse nearly any computerreadable work published with copyright notice. This would be an immense aid to scholarship, to historical review, and to the generation of new ideas for the future, as it has been with works in the older technological media.
The issue, then, is the form in which computer-readable data bases should be deposited under Section 407 in order to maximize their