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The National Bureau of Standards (NBS) retained CRC SYSTEMS Incorporated, 125 Church Street, Suite 202, Vienna, Virginia 22180 to perform an analysis of the impact of information technology on copyright law in the use of computerized Scientific and Technological Information Systems (STI). The purpose of this report is twofold: First, to identify and describe the recent (1900-1970) impacts of technology upon copyright law and second, to present and discuss the potential impact of STI systems upon copyright law.

The accelerated pace of technological change and development during the twentieth century has required major adaptations and adjustments in the body of copyright law that was set forth in the statutes previously enacted. The courts have to a large degree been called upon to adapt the pre-existing copyright statutes by interpretation, to the issues arising from the later development of technologies. By reviewing the more significant decisions, this report attempts to develop for the reader an understanding of the underlying principles and philosophies of the copyright statutes and the court decisions applying to them. With this background and framework of the adaptation heretofore of the copyright law to new technologies, the authors focus upon the new computerized STI technology and the issues that this technology may bring to bear upon the body of copyright law in existence at the time of writing this report.

A.1.2 SCOPE OF THE STUDY

Although the history of copyright law in the United States dates from 1790, the rapid development of technology, especially electronic-based technologies, has occurred mainly after 1909. In that year the copyright law was rewritten, and it was not until recently (1976) that it was again rewritten. This report therefore will examine the changes, interpretations, and modifications to the 1909 law, and the ramifications of the new 1976 Copyright Laws, as they relate to technological changes. The scope of this report is bounded by issues that developed as a direct or indirect consequence of the introduction of new technologies.

A.1.3 MAJOR FINDINGS AND CONCLUSIONS

This section summarizes the major findings and conclusions of this report.

A.1.3.1 Technological Innovation. Among the more important innovations in information technology which have had important effects on the applicability, interpretation, and enforceability of copyright law in the twentieth century are:

0 Motion Pictures
0 Sound Recordings
0 Radio and Television Broadcasts
o Photocopying
o Cable Television Systems
0 Microfilm, Videotape, and Computer Programs

A.1.3.2 Major Historical Issues. Each of the above new technologies has resulted in adaptation of the copyright statutes to the new products and processes growing out of the new technologies developed after the statutes were enacted. With regard to the technologies examined in this report several basic questions arose which required judicial, legislative, or Copyright Office intervention. Among the more important issues raised were:

1. Is the new product copyrightable? (Motion pictures, sound

recordings , microfilms, videotapes, computer programs.)

2. What rights are covered by the copyright in the new pro

duct? (Motion pictures, sound recordings, computer programs.)

3.

Are new devices for using copyrighted works subject to the copyright? (Motion pictures, sound recordings, radio and television broadcasts, photocopying, cable television.)

These issues were dealt with and resolved principally by court decisions, of which the most significant are reviewed and analyzed in this report. Some relatively simple issues have been resolved as a practical matter by industry practice or by copyright Office interpretation of the statute. The same issues have been dealt with finally in the new Copyright Act of 1976.

A.1.3.3 Conclusions Relating to Adaptation of Copyright Law to New Technologies. We believe the following observations and conclusions may be drawn from all of these sources concerning the adaptation of the copyright statutes to the new products and processes growing out of

new technologies developed after the statutes were enacted. These are not, of course, the only conclusions that might be drawn from the cases and events cited:

1. It seems certain that technologies now in their infancy or now unknown will, at some future time, result in new products or processes that will raise copyright questions not provided for specifically in the Copyright Act of 1976 (or the earlier statutes). The 1976 Act attempted to take into account recently developed technologies and their foreseeable applications affecting copyright. Even here the new Act did not succeed completely: As is shown in Section A.4 of this report, the problems concerning uses of copyrighted works in computer systems (which were discussed during the Congressional hearings in 1965 and 1967 on the copyright revision bills in the light of what was then known or anticipated as to such computer uses) were considered not sufficiently crystallized or understood to allow the formulation of legislative rules; instead, Congress provided (in P.L. 93-573 enacted in 1974) for the establishment of a National Commission (CONTU) to study these problems and make recommendations for appropriate legislation. And there will no

. doubt be other copyright problems raised hereafter by new technologies of the future that are completely unforeseen now.

2. Past experience indicates that the problems raised in the future by new technologies will be brought before the courts for decision as to how the terms of the 1976 Act are to be construed in their application to the new situations. The courts will be expected to make definitive rulings on many new issues involving such questions as the copyrightability of works produced in new ways or in new forms, and the rights of copyright owners and users with respect to uses made of copyrighted works by new methods or in new media.

3. The courts will probably differ among themselves in the basic approach they take to the application of the 1976 Act to the new situations. The decisions reviewed illustrate two main approaches:

(a) One is to expound the philosophy that the copyright law is intended to stimulate the creation and dissemination of works of authorship by giving to authors (and their successors as copyright owners) the economic rewards that are afforded by the market for the various uses that may be made of their works; the courts taking this approach have looked for analogies between the situations clearly provided for in the statute and the new situations, and, finding such analogies, have tended to hold that the new situation comes within the intended scope of the statutory provisions.

(b) The opposite approach has been to construe the statute narrowly as referring to the situations known at the time of its enactment; the courts starting with this premise have generally been concerned with the restrictions that copyright was seen to impose on socially beneficial new developments, if applied to them, and have considered that the extension of the statute to these new developments should be left to Congress.

The review of the court decisions in this study can be taken to indicate that, on the whole, the courts have been more inclined to take the first approach, particularly in the usual case where the issue appeared to be capable of satisfactory resolution by deciding simply whether the work or the use involved was or was not subject to copyright under the statute. The courts have taken the second approach when they were faced with a choice between holding for complete copyright liability or none, against an important new industry or use whose development or very existence was thought to be jeopardized if complete liability were imposed, and where legislation on the issue appeared imminent. (The majority opinions in the White-Smith case, in the Court of Claims decision in the Williams and Wilkins case, and in the Supreme Court decisions in the Fortnightly and Teleprompter cases illustrate the second approach; all the other decisions reviewed -- excluding some district court decisions that were reversed on appeal -- illustrate the first approach.)

4. Where the courts have held that the earlier copyright statutes extend to the products or uses resulting from new technologies developed later, Congress has generally adopted the same position in subsequent legislation. Where the courts have refused to extend the earlier statutes to new uses of copyrighted works because of the danger that imposing full copyright liability would result in unduly harmful consequences to the users or to the public. Congress has provided in subsequent legislation that such uses are to be brought under copyright, but subject to special exceptions or special conditions and limitations designed to forestall those harmful consequences, while giving copyright owners the measure of protection still possible or, at least, compensation for the new uses of their works.

5. Where a clear yes-or-no answer on a question of copyright protection or copyright liability will solve a problem raised by new technology, the problem can be, and is likely to be, resolved by judicial decisions construing the existing statutes. But where the problem is quite complex, with compelling economic or social interests on both sides to be safeguarded and reconciled, the slow and cumbersome process of legislation may be required to formulate a multifaceted set of basic rules

together with special conditions, limitations, exceptions, etc., peculiarly tailored to fit the differing needs of the several interest groups concerned. And it may be extremely difficult to enact legislation of this nature unless and until the interest groups are ready to agree or to accept the main features of the proposed legislation. (These observations regarding legislation are illustrated by the provisions in the 1976 Act on photocopying and on cable television.)

6. On some questions of how the existing statutes apply to the products of new technology, where the question is fairly uncomplicated and the justice of the answer given is fairly clear, a ruling by the Copyright Office or a practice adopted by an industry group may be sufficient to settle the question for all concerned.

A.1.3.4 Providing Technological Expertise to the Judiciary. When courts have needed to be informed concerning matters of esoteric technology, they have generally been provided with the technological expertise pertinent to the issues in the case before them through such established procedures as the testimony of expert witnesses, physical demonstrations of technical devices or processes, briefs or memoranda presented by counsel, and research conducted by the court or its aides. Those procedures have apparently been found adequate in most litigation, including the usual run of copyright cases.

If other means were considered to be necessary, in extraordinary cases, to provide technological expertise to the judiciary, several other mechanisms might be given consideration:

1. The establishment of a special court or system of courts to deal with cases involving highly complex and sophisticated technological issues. Prototypes of such courts now exist in the Court of Customs and Patent Appeals, the United States Tax Court, and the special State courts established to deal with juvenile and domestic relations cases.

2. Having specialists in the fields of science or technology involved attached to the staff of the court or available to serve as consultants to the court. Many of the juvenile and domestic relations courts now employ specialists in the medical, behavioral, and social sciences as staff members or consultants.

3. Making available to the courts the expertise of the wide range of scientific and technological specialists employed by the various Government agencies.

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