-2 on electromagnetic tape, is protected by copyright under the terms of the 3/ new law. counterparts. Computer-readable data bases do differ, of course, from their hard-copy Some of these differences raise copyright issues and related policy considerations, and the Data Base Subcommittee has attempted to identify those societal interests and values which could be advanced by the Commission's recommendations with regard to data bases. Copyright applied to data bases should, it was generally agreed, encourage the development and dissemination of useful stores of information, so as to make this information readily availabe to the public. In addition, the Commission should encourage data base proprietors to publish and register their copyrighted works, which would create a public record of the existence of the wor 41 and, in turn, make possible public awareness and utilization of the works. 3/ The House of Representatives Report accompanying P. L. 94-553 makes clear the intention to include computer-readable data bases within copyright by explaining that: The term 'literary works' does not connote any criterion 4/ Maximization of public access to information contained in automated data bases is cited as a significant goal of a national information policy in the Report to the President of the United States on National Information Policy 70 (1976), prepared by the Domesitc Council Committee on the Right of Privacy, under the chairmanship of then-Vice President Nelson Rockefeller. -3 The following discussion is premised upon the Commission's agreement with the legislative intent of the new copyright law to accord copyright protection for computer data bases equivalent with the protection accorded compilations in traditional hard-copy format. The problem-areas identified by the Commission are: 1) What copyright consequences attach to the "input" into a computer of a copyrighted work (perhaps better described as the fixation of a work in a medium capable of use within a computer system)? 2) What rights does the proprietor of copyright in a data base have in regard to the use of extracts provided in response to authorized searches or enquiries made of the data base? and 3) What constitutes publication of a data base, and 5/ what legal consequences attach to publication? I. The "Input" Issue The issue whether copyright liability should attach at the "input" or "output" stage of use in conjunction with a computer, i.e., at the time a work is placed in machine-readable form in a computer memory unit 5/ It should be clear that the same principles which apply to data bases apply also to any copyrightable works embodied in a format for use and reproduction within a computer. -4 or when access is sought to the work existing in computer memory, has been the primary source of disagreement regarding copyright protection for works in computer-readable form. This issue provided the major impetus for the introduction of Section 117 into the copyright revision bill, which was designed to delay reaching any final resolution of the "inputoutput" problem, without delaying passage of the copyright revision bill, until further consideration of the issue could be undertaken 6/ by a then still-to-be-created commission (CONTU). It appears, nevertheless 6/ Section 117, P.L. 94-553, provides: Notwithstanding the provisions of sections 106 through This section was first introduced into the copyright revision bill in 1969, see S. 543, 91st Cong., 1st Sess. (1969), at which time the impact of the computer, and particularly the "input-output" question, was causing great concern on the part of copyright proprietors. Section 117 was agreed upon by interested parties as a means of permitting passage of the copyright revision without committing the Congress to a position on the computerrelated issue until more study could be undertaken. that the provisions of the new copyright law offer appropriate and sufficient guidance to determine what acts create copyright liability in this area. The protection afforded by section 106 of the act would seemingly prohibit :he unauthorized storage of a work within a computer memory which, being erely one form of reproduction, would be one of the exclusive rights 7/ granted by copyright. One Considering the act of storing a computerized data base in the memory ›f a computer as an exclusive right of the copyright proprietor appears consistent both with accepted copyright principles and with considerations ›f fair treatment for potentially affected parties. Making a copy of an entire work would normally, subject to some possible exception for fair use, be considered exclusively within the domain of the copyright proprietor. would have to assume, however, that fair use would apply rarely to the repro8/ luction in their entirety of compendious works, such as data bases. copy of the work is to be stored in a computer and subsequently made accessible. to others, its creation would have to be properly authorized by the copyright proprietor. If a The fact that only one copy is being made, or even that the owner of the computer system intends to exact no fee for providing access to the work, would no more insulate the copies from liability for copyright infringement 1/ It may be that the use of the term "input" to describe the act to which Copyright liability attaches has been misleading. A more accurate description of the process by which a work may be stored in a computer memory would indicate that a reproduction is created within the computer memory in order to make the work accessible by means of the computer. 3/ See section 107, P. L. 94-553 for statutory criteria governing "fair use." -6 than would similar circumstances insulate a public library which made unauthorized 9/ duplications of entire copyrighted works for its basic lending functions. Under normal circumstances, the transfer by sale or lease of a copyrighted work in computer-readable form, such as a data base, would be a meaningless transaction unless implicit in the transfer was the authorization to place or reproduce a copy in the memory unit of the transferee's computer. Any limitations on the use to be made of the copy would be a matter to be negotiated between private parties, guided by applicable public policy 10/ considerations. The proprietor of a work in computer-readable form would, under any foreseeable circumstances, be able to control by contract the future disposition of machine-readable copies of his proprietary work. Thus, the proprietor of copyright in such a work would always have a valid cause of action, arising either under copyright or contract, if a reproduction of the work is entered into a computer without the proprietor's authorization, or if a transferee authorizes a third party to enter a copy into the memory unit of a computer in violation of the terms of a valid agreement with the proprietor. 9/ The example of a copyrighted work placed in a computer memory solely to facilitate an individual's scholarly research has been cited in earlier Commission meetings as a possible fair use. The Data Base Subcommittee agrees that such a use, restricted to individual research, should be considered fair use. In order to prevent abuse of the "permission" provided under fair use principles, any "copy" created in a machine memory should be erased after completio of the particular research project for which it was made. This "copy" could be retained, for archival or further research purposes, only with authorization from the copyright proprietor. 10/ Outright sale by a copyright proprietor of a copy of a protected work, rather than a lease under which the proprietor retains ownership of a copy which the lessee may use in accord with negotiated terms and conditions, normally results in a complete loss of control over the copy which has been sold. This reflects the unwillingness of courts to enforce restrictions on the alienation of property, once a complete transfer of ownership interest in any item of property has been accomplished. |