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We do not believe any such special mechanisms are needed in copyright litigation involving new technologies. The judicial decisions in copyright cases dealing with new technologies -- as exemplified by those reviewed in this study indicate that the courts have been adequately informed, through the judicial procedures now used, concerning the new technologies involved, to reach intelligent and appropriate judgments.

A.1.3.5 STI Systems and Copyright Law. The authors, after reviewing the general principles that the courts have applied to copyright issues, and the historical impact of new technologies upon the copyright statutes, examined computerized STI systems in relation to the copyright law.

A.1.3.6 Groups Interested in STI Systems. The interest groups having, primarily and most directly, a financial, professional or service interest in the copyright issues relating to the generation, dissemination, or use of STI systems include:

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Authors of various kinds of works, principally textual
and graphic works in the field of science and technology.

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Commercial and nonprofit publishers of journals and of books and monographs of a scholarly or informational character.

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Producers and publishers of compilations of bibliographic and factual data.

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Libraries, especially large research, university, and industrial libraries.

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Educators and students, especially at the college and university levels.

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Industrial and nonprofit research organizations and individual researchers.

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Organizers and operators of computerized information service systems.

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These groupings could, of course, be arranged in other ways, and there is considerable overlap among the groups as listed above.

A.1.3.7 Orientation of Suppliers and Users of STI Systems. From the standpoint of their copyright interests, the various groups may be divided into two broad categories: (1) authors, producers, publishers, and other suppliers of copyrightable materials, who are interested in having copyright protection and in receiving compensation for the uses of their works; and (2) researchers, educators, scholars, libraries, and other users of copyrightable materials, who are interested in having access to and use of those materials.

The differing needs of copyright owners on one hand and users of copyrighted materials on the other hand, are usually met by contracts negotiated in the open market. The desire of copyright willingness of owners to derive revenue from the market for their works, and the willingness of users to pay reasonable fees for the use of those works, have generally operated to make the market place responsive to the needs on both sides. In most situations the system of freely negotiated contracts should work to meet the needs of the owners and users of copyrighted works used in computerized STI systems.

In certain situations involving the use of copyrighted works in other media, problems of accommodating the needs of both owners and users have called for special treatment, either through voluntary systems for centralized or blanket licensing or through statutory provisions for compulsory licensing. These special methods of accommodation are discussed in the report as outlined below.

A.1.3.8 Copyright Law and its Impact upon Computerized STI Systems. Among the conclusions reached in this study concerning the application of the copyright law to computerized STI systems are the following:

A.1.3.8.1 Copyright Protection for Computer Programs. Computer programs generally are subject to copyright protection. The protection afforded by copyright is limited to reproduction of the program in its substance. Copyright would not protect the processes or techniques revealed in the program.

A.1.3.8.2 Copyright Protection for Data Bases.

1.

In general, data bases, whether in printed or machine-
readable form, are copyrightable as compilations.

2. Complying with the requirements of copyright notice and

deposit of copies, as may be necessary for effective
copyright protection, may call for some special procedure
in the case of data bases in machine-readable form, and
in the printout of material from data bases, but no
insuperable difficulties in this regard are seen.

A.1.3.8.3 The Production of Data Bases.

1. The indexing of documents in order to compile a biblio

graphic data base can be done manually or by using a com-
puter. If done by computer, the indexer must have the
documents in machine-readable form. If the documents are
copyrighted, the indexer would apparently have to obtain
machine-readable copies from the publishers, or to obtain
permission from the publishers to make and use his own
machine-readable copies, for indexing. It has been
argued that where the publishers cannot supply machine-
readable copies, an indexer should be permitted by law to
make his own, for the sole purpose of indexing, as a fair
use or, alternatively, under a compulsory license.

2.

The typical abstracts in data bases are no more than brief
identifying statements of the subjects covered in the
document; making such abstracts of copyrighted works is
not an infringement. However, a so-called "abstract" that
is actually a digest of the substance of a copyrighted
work, sufficient in detail to substitute for the work it-
self, would constitute a derivative work, and making such
would infringe the copyright.

A.1.3.8.4 The Use of Copyrighted Data Bases in Computerized Systems.

1. Where a system operator obtains a machine-readable data

base from the publisher, the lease agreement between them
will generally include (expressly or impliedly) a license
for the operator's use of the data base in his system.
Such agreements will usually serve to settle the copyright
questions that would otherwise be expected to arise.
Where the publisher offers machine-readable copies, a sys-
tem operator who makes his own copy instead of obtaining
one from the publisher should be considered an infringer.

2. Where the publisher of a copyrighted compilation of data

does not offer machine-readable copies, an operator who wishes to place that compilation in his data base system should be expected to ask the publisher to make and supply a machine-readable copy or to permit the operator to make one for use in his system. Where the publisher then refuses or fails to accede to such request, a valid argument could be made for a compulsory license.

3. It can be assumed that the publishers of machine-readable

copies of copyrighted compilations of data will generally lease them, but not sell them, to system operators. An operator who is offered such a copy from a third person should therefore be suspicious of its legitimacy, and should be held liable if he acquires such a copy that was made or supplied to him in violation of the copyright.

4.

If a system operator makes his own machine-readable copy of a copyrighted compilation or acquires a copy legitimately from a third person, he will need to obtain a license from the publisher to use it in his system. There are good arguments for requiring the operator in this situation to obtain such a license before putting the data into his system.

5.

If a license for the use of a copyrighted data base in a
system has not been obtained earlier, the operator would
need to obtain a license for the output of material from
the data base. In the absence of a license, the extrac-
tion of a small fragment of a data base by a user of the
system on one occasion would appear to qualify as a fair
use; but the aggregate of the output of fragments on
many occasions would appear to constitute an infringement
by the operator of the system.

6.

If a user of a system were to extract from it an entire copyrighted data base or a major part of it, he would be infringing the copyright. Practical arrangements for preventing and detecting such infringements seem feasible.

A.1.3.8.5 Exclusive and Compulsory Licenses for the Use of Data Bases. In order to facilitate the development of computerized systems that will contain all the data bases needed for comprehensive coverage of any subject area, and also to prevent the monopolization of data base search services by one or two systems, consideration should be given to a scheme for precluding exclusive licenses for the use of data bases in individual systems. One such scheme would be a statutory provision for the compulsory licensing for use in all systems, of a data base licensed for use in any one system.

A.1.3.8.6 Full-Text Storage and Retrieval of Documents in Computerized Systems.

1.

The questions as to input and output of copyrighted docu-
ments are substantially the same as those pertaining to
the input and output of copyrighted data bases. The dis-
cussion and conclusions in this study relating to data
bases are applicable generally to the computer storage and
retrieval of the full text of documents.

2.

There has been considerable discussion as to whether the
input of copyrighted documents should be free, with a
license and payment to the copyright owner being required
for output, or whether a license should be required be-
fore input. The arguments advanced on both sides are
presented in this report. The authors of this report
are impressed most by the argument that, since a license
will admittedly be required for output, practical con-
siderations suggest that the terms of the license, in-
cluding the basis for assessing fees, should be settled
between the parties before the operator of the computer
system begins the process of using the material.

A.1.3.9 Unique Characteristics of Computerized STI Systems. It can be deduced from the analysis of copyright questions relating to the use of copyrighted works in computer systems that such uses present special characteristics not present in the traditional ways of using copyrighted material. The following special features of computer uses seem particularly significant:

1. Copyrighted works in their usual form of printed pages are

usable in that form in other media, but must be converted to machine-readable form for use in computer systems.

2. The availability to researchers and other users of the

works placed in a computerized STI system will tend to displace the market that would otherwise exist for the sale of copies of the works to them.

3. Computerized STI systems, to realize their potential value

for research, must seek to include comprehensively the whole body of works extant in any particular field of science or technology.

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