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The procedures mentioned above comprise those most generally used to inform the courts of the facts and issues that must be known to them as the bases for their judgments, and those procedures have apparently been found adequate for the purpose in most litigation, including the usual run of copyright cases in which such technologies as may be involved are old and so well known as to be taken for granted.

If, in extraordinary cases, other means are needed to provide technological expertise to the judiciary, there are several prototypes that might be adapted to serve that need. Thus, in a few areas of the law where the cases involve technical questions of a specialized character, special courts have been established to decide controversial issues: for example, there is a special Court of Customs and Patent Appeals for the review of contested rulings by the Patent Office on the validity of patent claims, as well as rulings by the Customs Bureau on customs matters; and a special Tax Court has been established to decide cases involving liability for Federal taxes. Special courts have also been established in the States to deal with certain classes of social problems, notably juvenile and domestic relations courts. Judges of these special courts are expected to be or to become experts in the particular field within their jurisdiction.

Another means that might be employed to provide the courts with expertise in scientific or other technical fields is to have specialists in those fields attached to the staff of the court or otherwise serving as consultants to one or a group of courts on a regular basis. As an instance of this, many juvenile and domestic relations courts and some criminal courts have specialists, such as physicians, psychologists, and social workers, serving as members of their staff or as consultants to conduct examinations or investigations and advise the judges. It may not be practicable to staff the Federal courts with experts in the various branches of science and technology, but perhaps they could be called in as consultants as and when needed.

The evolution of regulatory and similar administrative agencies of the Government also suggests ways that might be developed to provide the courts with technical information. Those agencies are somewhat comparable to courts in that they exercise quasi-judicial functions in interpreting the broad provisions of statutes and applying them to specific situations. To assist in their performance of these functions the agencies employ specialists in various fields to assemble information on technical subjects and to evaluate the significance of that information for the guidance of the agency in making decisions. It might be feasible to make arrangements whereby the expertise of the various Government agencies could be made available to the courts in a regularized manner.

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Are special institutions or procedures such as those mentioned above needed in copyright litigation involving new technologies for the production or use of copyrighted works? This comes down to a matter of opinion on which analysts of the question may differ. We believe the answer is: no. As we see it, the judicial decisions in copyright cases, as exemplified by those reviewed earlier in this study (and they are more concerned with technological aspects than are the bulk of copyright cases) --, indicate that the courts have been adequately informed, through the judicial processes and procedures now used, on the new technologies involved, to enable them to reach intelligent and appropriate judgments.

It is evident that patent law, for example, deals essentially with products and processes of the physical sciences and technology, so that a fairly thorough knowledge of those fields is required in deciding many of the questions that arise under the patent law. But the copyright law is quite different in the nature of its subject matter -- works of authorship -- and in its central concerns with the reproduction and dissemination of such works; the technologies involved in the means of reproduction and dissemination appear to be no more than incidental to the main issues which relate to the economic and social values of such works and their uses. So, it is generally enough, in copyright cases, for the court to be informed of the basic features of the technologies involved; the court does not need to acquire the detailed knowledge in depth of an expert in the technology.

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This last observation is well illustrated by the Fortnightly case: District Court devoted twelve pages of its opinion to a detailed exposition on the technological processes involved in the cable system's retransmission of broadcast signals, as throwing light on the question of whether the cable system merely relayed those signals or transformed them into new signals constituting a new performance of the content of the program (though this was not the sole basis for the District Court's decision). Both the Circuit Court of Appeals and the Supreme Court disavowed this technological analysis as a basis for deciding the issue; instead, they looked at the functional purpose and effect of the retransmission to decide whether it was a performance comparable to that of a broadcaster (as the Circuit Court held) or was merely a passive aid to the viewer's reception of the broadcast (as the Supreme Court held).

Commentators have criticized some court decisions in one copyright case or another as reflecting the court's lack of understanding of certain principles of the copyright law; but it would be hard to find any complaints that the courts have reached erroneous conclusions because they did not understand the technologies involved in the use of copyrighted works.

In sum, as we see it, the technology employed in the reproduction or dissemination of copyrighted works would rarely, if ever, be decisive of the issues in copyright cases, and the means now used to bring the pertinent facts of a case to the attention of the court are adequate to provide the court with as much information as it needs concerning the technologies involved.

A.4

THE COPYRIGHT LAW IN RELATION TO COMPUTERIZED
INFORMATION SYSTEMS

A.4.1 BACKGROUND

A.4.1.1 Legislative History. During the initial hearings in the House of Representatives in 1965 on the bill for general revision of the copyright law, some sketchy testimony was presented on the problems then anticipated concerning the use of copyrighted works in computer systems (Hearings on H.R. 4347, 89th Cong.). In its Report in 1967 based on those hearings (House Report No. 83, 90th Cong.) the House Judiciary Committee said:

"Although it was touched on rather lightly at the hearings,
the problem of computer uses of copyrighted material has
attracted increasing attention and controversy in recent
months. Recognizing the profound impact that information
storage and retrieval devices seem destined to have on author-
ship, communications, and human life itself, the committee
is also aware of the dangers of legislating prematurely in
this area of exploding technology."

Even while it spoke of legislating prematurely, the Committee went on to express these opinions:

"Thus, unless the doctrine of fair use were applicable, the
following computer uses could be infringements of copyright
under section 106: reproduction of a work (or a substantial
part of it) in any tangible form (paper, punch cards, mag-
netic tape, etc.) for input into an information storage and
retrieval system; reproduction of a work or substantial parts
of it, in copies as the "print-out" or output of the computer;
preparation for input of an index or abstract of the work so
complete and detailed that it would be considered a "deriva-
tive work"; computer transmission or display of a visual
image of a work to one or more members of the public. On the
other hand, since the mere scanning or manipulation of the
contents of a work within a system would not involve a repro-
duction, the preparation of a derivative work, or a public
distribution, performance, or display, it would be outside
the scope of the legislation."

These problems of computer uses of copyrighted works were discussed thereafter at much greater length during the Senate hearings in 1967 on

the general revision bill (Hearings on S. 597, 90th Cong.). The testimony at those hearings on behalf of authors and publishers generally argued in support of the opinions stated in the House Committee Report (No. 83). The testimony on behalf of user groups, especially academic users, was critical of those opinions; suggested that some uses of copyrighted material in computer systems should be exempt from copyright control, and insisted that it was premature to reach any legislative conclusions on the issues. There were suggestions by some witnesses on both sides that many of the controversial aspects of the problem could be resolved if a central "clearinghouse" system could be established to license computer uses of copyrighted works on a mass basis upon payment of preestablished royalties.

Subsequently a consensus developed among the interested groups that the problems of computer use required further study before they could be dealt with satisfactorily in legislation. Two legislative provisions emerged from that consensus. One was the provision to establish the National Commission on New Technological Uses of Copyrighted Works (CONTU) which was enacted on December 31, 1974 as part of Public Law 93-573. This act states:

"The purpose of the Commission is to study and compile data

on:

(1)

the reproduction and use of copyrighted works of
authorship -

(A) in conjunction with automatic systems capable of storing, processing, retrieving, and transferring information, and

(B) by various forms of machine reproduction...

(2) the creation of new works by the application or intervention of such automatic systems or machine reproduction."

The Commission is to make a final report within three years (by December 31, 1977) with its recommendations as to "such changes in copyright law or procedures that may be necessary to assure for such purposes access to copyrighted works, and to provide recognition of the rights of copyright owners."

The second provision resulting from the consensus among the parties concerned was section 117 of the new Copyright Act of 1976, providing in substance that the law pertaining to computer uses of copyrighted works

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