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The fact that copyright would not provide the sole right and remedy for

unauthorized use of a protected work is neither unique to the protection of proprietary interests in computer-readable works, nor is it a situation

to be considered undesirable.

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Accordingly, the Data Base subcommittee believes that the application

of principles already embodied in the language of the new copyright law achieves the desired substantive legal protection for copyrighted works which exist in machine-readable form. The introduction of a work into computer

Exemplifying such fair

memory would, consistent with the new law, be a reproduction of the work which is one of the exclusive rights of the copyright proprietor. The unauthorized transfer of an existing machine-readable embodiment of a work could subject the violators to remedies for breach of contract. Principles of fair use would be applicable in limited instances to excuse unauthorized "input" of a work into computer memory. uses could be the creation of a copy in computer memory in order to prepare a concordance of a work, or to perform a syntactical analysis of a work, which but for the use of a computer would require a prohibitive amount of human time and effort. To satisfy the criteria of fair use, any copies created for such research purposes should be destroyed upon completion

11/ Remedies for breach of contract, if the right being protected is not equivalent to copyright, would not be preempted under the provisions of Section 301 of the new copyright law, and would accordingly be available to one who, on the strength of a copyright interest, granted permission to another to make certain uses of the copyrighted work only to have the terms of the authorization violated. There continues to be some scope for state enforcement of proprietary rights in intellectual property under the new copyright law. See H.R. 94-1476, supra note 3 at 131-32. The fact that state, rather than federal, law would be involved presents few real problems. The existence of parallel, but not equal rights under state and federal law reflects advantages as well as disadvantage's inherent in a federal polity, and in event both claims could be joined in the same federal cause of action under principles of pendent jurisdiction.

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for the research project for which they were created. Should the individual or institution carrying on this research desire to retain the copy for archival purposes or future use, it should be required to obtain permission to do so from the copyright proprietor. All these provisions could be explained in CONTU's final report and, depending upon actions taken by Congress pursuant to the report, would be considered an interpretive aid to the copyright law akin to legislative reports.

II. Scope of Copyright in a Data Base

A computer-readable data base derives its value in large part from the ease with which a user may retrieve from it data conforming to certain specifications. That ease is the product of several factors the organization of the data, the sophistication of the program which assists in the searching and retrieving, and the skill of the searcher in articulating the search criteria. The difference between using a data base in hard copy and one in computer-readable form is that the former is passive and the latter may be, in the language of the industry, interacti Thus a student who searches the Reader's Guide to Periodical Literature (a copyrigh data base) must not only know what is sought but must also painstakingly read much unsought material found in numerous volumes and updates to obtain the desired information. If, however, an interactive bibliographic data base is used only the topic(s) of interest need be expressed in order to receive citations to apparently pertinent literature and, frequently, abstracts of that literature to allow further evaluation of its utility. One important question for the Commission's purposes concerns what rights the proprietor of a computer-readable data base has in the information obtained pursuant to a user's request to, or "search" of, such

a data base.

12/ An "interactive" data base is one with which a user, aided by a computer, can "converse," i.e., the user frames questions to which the data base, controlled by a computer, provides response.

There appears little doubt that one who obtained access to a copyrighted

data base by normal commercial methods

paying the proprietor or the proprietor

authorized agent for the right to search the data base and retrieve from it

information or data responsive to the search request

would infringe an

existing copyright by retrieving the entire data base and marketing an exact duplicate in competition with the copyright proprietor.

Such activity would

beyond question be unauthorized copying in violation of a valid copyright. Purchasing access to information contained in a data base no more entitles one to make and employ copies for commercial purposes than would purchasing a copy of a copyrighted directory entitle one to produce and disseminate copies of the directory.

Two complications arise in attempting to define the scope of protection in a computerized data base. First, such works are not static; rather, they

are constantly being updated by the addition of current data and the deletion of that determined obsolete.

Second, the question as to what rights a copyright proprietor has in extracts of information retrieved pursuant to an authorized search of the data base must be addressed. Provisions applicable to both issues are found in the text and legislative reports of the new law.

The dynamic process by which a data base changes need not affect the entitlement of the data base to copyright protection. This process raises two concerns: 1) that deposit of a new embodiment of the data base to reflect every modification of the data therein contained would be both extremely expensive for the proprietor and cumbersome for the Library of Congress; and 2) that a proprietor, by virtue of the constant updating of the data base, could claim copyright in the work in perpetuity, in disregard of the "limited times" provision of the Constitution and the statutory term of 75 years applicable

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to data bases under the new statute. Neither of these concerns need cause

serious problems.

The deposit requirement should prove no bar to providing effective copyright protection for dynamic data bases. Deposit is not a precondition to copyright under the new law. Sections 407(c) and 408(c) of the new copyright statute authorize the Register of Copyrights to exempt categories of material from the deposit requirements by regulation, or to require alternative forms of deposit. Computer data bases seem well-suited for this exemption, for the deposit of an identifying form would achieve the statutory purpose of "providing a satisfactory archival record of a work without imposing practical or financial 13/ Nor would a dynamic data base necessarily

hardships on the depositor."

obtain protection for a longer period than constitutionally or legislatively

authorized, any more than would a telephone directory be given perpetual protection by virtue of its being updated annually. The proprietor of a data base would have to register anew periodically for copyright in such work, just as the proprietor of a telephone directory obtains copyright in new editions of a work periodically appearing.

Similar also to a telephone directory, copyright in a dynamic data base protects no individual datum, but only the systematized form in which the data is presented. The use of one item retrieved from such a work be it an address, a chemical formula, or a citation to an article. would not under reasonable circumstances merit the attention of the copyright

proprietor.

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Nor would it conceivably constitute infringement of copyright.

13/ Section 407, P.L. 94-553.

In any event, the issue

The retrieval and reduplication of any substantial portion of a data base, whether or not the individual data are in the public domain, would likely constitute a duplication of the copyrighted element of a data base, and would be an infringement. of how much is enough to constitute a copyright violation would likely entail analysis on a case-by-case basis with considerations of fair use bearing on whether the unauthorized copying of a limited protion of a data base would be held non-infringing. The Commission could recommend in its Report, that fair use would have very limited force when an unauthorized copy of a data base was made for primarily commercial use. Only when information of substantial amount were extracted and duplicated for redistribution would serious problems exist, raising concerns about the enforcement of proprietary rights.

It appears that adequate legal protection for proprietary rights in extracts from data bases exists under tranditional copyright principles as expressed in the new law, supplemented by still-available relief under common law principles of unfair competition. The unauthorized taking of substantial segments of a copyrighted data base should be considered

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infringing, consistent with case law developed from infringement of copyright in various forms of directories. In addition, common law principles of misappropriation, which according to the legislative reports accompanying

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the new law are not preempted with regard to computer data bases, are available to enforce proprietary rights in these works.

14/ See, e.g., Leon v. Pacific Tel. & Tel., 91 F. 2nd 484 (9th Cir. 1937) and Jeweler's Circular Pub. Co. v. Keystone Pub. Co., 281 F. 83 (2d Cir.), cert. denied, 259 U.S. 581 (1922), aff'g 294 F. 932 (S.D.N.Y. 1921).

15/ H.R. 94-1476, supra note 3 at 132.

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