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availability, minimize storage and handling problems for the Library, not provide a hardship of supply to the proprietors and not strain fair

use.

It is not immediately clear, on these criteria, whether the initial deposit should be a printout or a magnetic tape, but it seems reasonable to suggest that it should be the complete data base, not just identifying descriptions, regardless of which medium is chosen. The advantage of the printout is that any reader could peruse it without straining fair use. Microfilm could be used to reduce size and bulkiness. The advantage of the magnetic tape is that the data base is published in that medium; and it is a medium in which it is available for a scholar's manipulation and use, assuming it were an outdated tape that the proprietor no longer saw as an immediately marketable product that the scholar ought to buy by signing on the proprietor's computer system.

Many data bases are updated frequently, and it seems reasonable to suggest that a yearly update, containing only the new material added during the preceding year and the old material dropped, is not a burdensome requirement. The deposit of a complete data base, under the circumstances of continuous updating, could conceivably be required at least once in a period of several years, for example, ten.

5.6.3 The Question of Monopoly

In Section 4.7 of this report, the question of monopoly was discussed, and it was noted that the existence of an economic monopoly depends on the availability of substitutable works. In works produced for the general consumer, there may be high substitutability among individual works.

However, an important distinction must be noted between the respective market behaviors of the general consumer and the researcher-consumer of copyrighted works. The general consumer typically selects competitively for purchase or use one (or a few) of a class of relatively substitutable works while rejecting all others. The researcher in any professional field desires to be comprehensive in the full-text as well as in the data base literature of his field. Thus, the researcher (or his library surrogate) cannot reject totally anything pertinent, and his marketplace behavior with respect to competitive producers cannot be analogous to the general consumer. The question may be asked whether there is a greater potential for a market monopoly in this situation. If such is the case, a question that may be asked is what form of intervention should be pursued by consumers collectively or by the Government.

With respect to scientific journal articles, the situation is ameliorated through the formation of professional societies which serve as the collective good to circumvent the implicit market failure. Furthermore, the social ethic of research is that all those involved, even in different organizations, benefit from the unimpeded flow of information.

This ethic may tend to lower the prices of journals produced by scientific societies rather than raise them. Therefore, any independent entrepreneur of a proprietary journal may find that the subscription prices that can be charged are limited by competition from journals of non-profit societies. The fact that the primary producer community and the final user community of scientific journal articles are essentially the same population may be a key factor in preventing monopoly pricing.

With respect to bibliographic and other specialized data bases, a different situation exists. In contrast to the situation with scientific journal articles, there is very little in the publication of continual updates of a data base that can be translated by a professional researcher into either financial or symbolic remuneration unless the work is a full-time business. Thus the producer and consumer communities need not be the same population and this particular negative feedback restraint on the subscription price of journals need not hold for data bases. It is not surprising, therefore, to find that (excluding Government production) a significant fraction of data bases used for research purposes are produced and distributed for profit as proprietary products.

The development of computer-based information retrieval systems based on machine-readable data bases has added an additional complicating factor. First, the development of a computer-readable data base (with continual updating to insure an indefinite life) requires a certain investment in data collection, organization, manipulation, and digital conversion. Clearly, those organizations that already have computeraided publishing systems to help produce hard-copy informational products may be able to generate computer-readable data bases as relatively inexpensive by-products. Secondly, a parameter of usefulness of a data base is the comprehensiveness of its coverage of a specific field; and conceivably, only the largest organization with well-established lines of data supply and customer acceptance may be able to satisfy this need.

Thus, the possibility exists that in some field of research, by virtue of economy of scale, an established system of suppliers and customers and already amortized costs of entry in the market, a single organization may achieve a virtual market monopoly over a class of nonsubstitutable computer-readable data bases. An anti-trust suit concerning this very problem is now under litigation in the field of computer-based legal information retrieval.

Additional sources of monopoly control and a potential solution are described in Appendix A, Section A.4.4.5 of this report. The following is excerpted from that Section:

"In some instances, publishers of data bases have leased them
exclusively for use in one computerized information service
system... Exclusive licensing of data bases may tend to
foster the monopolization of data base search services by one
or two giant systems. Whether the prevention of such a monopoly

or the regulatory control of a permitted monopoly as a public
service organization would be preferable is an open question.

"From the standpoint of providing maximum service for re-
searchers, and at the same time preventing the development
of a monopoly the ideal situation might be the devel-
opment of a number of competing systems, each of which can
offer comprehensive coverage of any subject area.
of encouraging such a development would be to provide for a
compulsory licensing scheme under which a data base made
available for use in any one system would thereupon become
available for use in all other systems.

One way

"Whether a compulsory licensing scheme ... is needed and
whether is would be desirable, are debatable issues ..

It seems reasonable to suggest that a valid research subject at this time is the economics of provision of data base information in computerized form, considering both the incentives for innovation and the potential for monopoly pricing.

5.7 COPYRIGHT IN COMPUTER PROGRAMS

Some of the questions concerning the copyrightability of computer programs are first listed below and then are considered individually in some detail. These questions are: (a) Is a computer program a writing of an author and thus eligi

ble for copyright protection under the Constitution?

[blocks in formation]

(c) Can a computer program be sufficiently "original" that it

meets the requirements for a copyrighted work?
(d) Should a program in object code be treated any differently

under copyright than a program in a source language?
(e) Is protection of the specific expression of a program but not

the underlying conception sufficient protection to be valuable?

(f) Should copyright protection be denied computer programs on the

basis of the strength of the software industry?

(g) How long should protection last, if a program is copyright

able?

(n) What should be a buyer's usage rights in a program?

5.7.1 The Program as the Writing of an Author

In general, a computer program is written by a human being, and is written in a specific formal language. Those persons engaged in the occupational specialty of writing programs are known as programmers. Others engaged in the tasks of determining requirements for and blocking out the logical flow of programs may be known as systems analysts. However, engineers, scientists, and others. may write programs in the course of using a computer to assist them in solving problems in which they are engaged. In the United States today, there are probably severai million persons who can comprehend at least superficially a computer program written in FORTRAN, a widely-used programming language. In opposition to the copyrightability of computer programs, the point has been made that a computer program is a set of instructions for a machine, and in fact, according to this view, since the machine cannot operate without the program, the program is really part of the machine. Thus, programmers are really engaged in machine design, according to this argument, and the output of their work is more appropriately protected under a different legal mechanism than copyright.

Several points can be made in rebuttal to this line of reasoning. First, there is nothing inherent in a computer program that cannot be carried out by human labor, given either enough time or enough people to undertake the work. That is, the computer program written by a programmer is a set of instructions understandable by other persons; and it consists of individual steps that are possible to accomplish by humans, if time restraints are relaxed. The only capabilities needed to carry out the instructions of a program written in a typical source language, besides an understanding of the language, are (a) the ability to distinguish negative, zero and positive numbers, (b) the ability to perform arithmetic and elementary Boolean algebra, and (c), the ability to correctly select the next instruction, given explicit and unambiguous directions as to where to find it. It hardly seems fair to the author of such a set of instructions or to the public interest in economic efficiency to deny Government protection to the author's expression simply because, for purposes of speed and accuracy, the instructions are to be carried out by machine instead of by human labor.

If it is to be put forward that computer programs are not in a language in which humans speak to each other, that point can be accepted without damaging the case for copyrightability. Categories of works now copyrightable include musical works (that is, sheet music not necessarily including any accompanying words); pantomimes and choreographic works; and pictorial, graphic and sculptural works. None of these communicate to humans in natural language. Certainly included in the category of pictorial and graphic works are engineering and architectural drawings and schematic diagrams, all of which can be employed as instructions to those persons engaged in the construction of machines, devices, and structures.

Close to the concept of the computer program is musical notation and similar notations for sequences of choreographic motions. Musical notation is, in essence, a set of instructions for the operation of mechanical devices so as to produce a particular sequence of sounds, each with a particular pitch held for a particular length of time. It follows that the question whether a computer without its program is still a computer is analogous to the question whether a piano without someone playing it is still a piano. Discussion of such a question is not likely to be fruitful in the present context.

It may be helpful to point out, however, that a computer program is more than simply a set of instructions used to operate a machine. Computer programs are involved, in their operational use, in a variety of real human purposes. Some of those purposes involve research and other professional activities, while other purposes may appear to be mundane. However, the development of a computer program that will be used in connection with any real human purpose must include an understanding of the human and physical systems with which the program will be associated. Implicit in any set of calculations that represent the real world is a model of that portion of the real world. Clearly, the computer programs now in use throughout the United States that assist physicians in the diagnosis of heart ailments on the basis of an analysis of electrocardiogram signals constitute models of the heart's operation. Similarly, but perhaps not so obviously, accountants have begun to realize that the system of financial records of an organization including the records of collections, inventory, and disbursements is nothing less than a financial model of the organization.

In effect, the computer program is an implementation of the view that the physical world and at least part of the human world is amenable to rational analysis and quantification, and to understanding deduced from these processes. Scientists, engineers, economists and statisticians must be listed among those whose core of professional work conforms to this view. No person need accept this view either in its entirety or uncritically. In fact, a world run solely on the basis of this view might very well lack fundamental and essential value judgments that cannot be deduced or quantified. Copyright protection, however, as discussed in Section 2.6, requires no value judgment as to the individual merit of a particular writing of an author; and it is clear that the source code written by a programmer is such a writing.

While the most fundamental statutory test of copyrightability is whether the category in question constitutes a writing of an author, it is useful to consider the basic principle enumerated in Section 1.3 of this report. Under these principles, this study finds that the author of a computer program is entitled to the fruits of his creation; and that the ease of copying of this form of intellectual property constitutes an intrinsic market failure requiring the public good of statutory copyright protection. In addition, this study finds that without copyright protection for computer programs, losses in information flow, increased procedures for secrecy and less opportunity for creativity

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