in a whole storage element sense, though the recordings in the components of some computer storage elements are automatically refreshed internally. Storage in main memory is normally erased or replaced only upon specific instruction. Such recordation in main memory is, thus, non-evanescent and sufficiently permanent or stable to permit it repeatedly to be perceived, reproduced or otherwise communicated. Thus, the definition for "A work is fixed" is so amended, while striking the words "for a period of more than transitory duration." It is believed that such amendment does not change the basic intent of the definition while making clear that the recordation in the main storage element of a computer would be the making of a copy. Such protection is needed, for example, where a data base or computer program is "borrowed" and brought into a computer over telephone lines, and promptly erased after a few microseconds of presence. SECTION 102 Subsection (a) would be amended by adding as separate categories of works of authorship the following: 8. Data Bases 9. Computer Programs SECTION 106 The first amendment involves the insertion in item 5 of "data bases and computer programs" to accord the copyright owner thereof the exclusive right to display them publicly. A new item 6 would provide a special exclusive right for data base works. A new item 7 provides an exclusive right to read into, to store or to reproduce for storage in computers, in the case of data base and computer program works. It does not address all copyrighted works and leaves this matter for the attention of the National Commission. SECTION 117 The proffered amendment would make an exception to the intended status quo effect of Section 117. It would insure that the owner of copyright in a data base or a computer program work would not have nullified his proposed right with respect to the use of the work in conjunction with computers. NEW SECTION 118 This Section would especially stress the scope of exclusive rights in computer programs. Subsection (a) would make it an infringement of copyright for the possessor of a computer program to make a copy thereof by reproducing it in a computer unless authorized by the copyright owner. The intention of the subsec tion is to deny the mere possessor of a computer program the right to copy it into a computer. This is not to say that he may not have a relationship with the copyright proprietor such as to provide him with an implied license to do such nor that he may not have an express license to do such; however, absent such licenses he would only be able to use it. Thus, he would be like the purchaser of a book on a play: he may read it, but not put on a stage the play absent some authorization from the copyright owner. Subsection (b) provides that the copyright status of the result of the execution of a program will be that of a derivative work of the information (which may be a program, including itself) processed or modified by the executing program and its ancillary programs. The intention is to make clear that the result of executing a program will normally not be subject to the copyright in the program. If it is subject to any pre-existing copyright, it will be that of the information or data processed by the program. Subsection (c) provides definitions for special terms relating to computer programs, to-wit, "a computer" and "a flow chart." SECTION 301 Paragraph 301 (b) (3) would be amended to include violation of trade secrets and misappropriation, as activities violating rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106. This is to insure that application of the maxim Expressio unius est exclusio alterius, does not preclude availability of the rights to an author. A sentence would also be added to the end of Paragraph (b)(3) to limit the adverse effects of the presence of copyright notice on unpublished materials and/or of compliance with the deposit requirements, upon "non-equivalent rights." SECTION 407 Subsection (b) is amended to limit the use that might be made by the Library of Congress of deposited works. Items such as data bases and computer programs are costly and the use thereof for purposes other than reference within the Library of Congress would substantially impact the opportunities for investment recovery by the author, particularly considering the limited quantities in which they are marketable. SECTION 506 Subsection (a) would be amended to provide for computer programs and data bases, the same criminal penalties that are available for sound recordings. The items added entail a financial investment that is at least equal to that for sound recordings. A sentence would be added to the end of Subsection (a) to eliminate the exposure of a Government contractor operating under the provisions of 28 U.S.C. 1498 to the possible commission of a criminal act and prosecution therefor. SECTION 601 Subsection (a) would be amended by adding words at the end thereof to permit the importation or public distribution of non-dramatic literary material in English that is manufactured in the country in which it is written. Administrative and economic considerations normaily suggest that the work be printed where it is written. SECTION 704 Subsection (a) would be amended to specify that deposit copies are in the custody of, rather than the property of, the United States Government. Title would thus be left in the author and the Library of Congress' rights of utilization and disposition limited to that of a bailee. Again, the intention is to limit the use that may be made of expensive deposit copies. Subsection (b) would be amended to drop the provision for the exchange or transfer of deposit copies. [H.R. 2223, 94th Cong., 1st sess.] A BILL For the general revision of the Copyright Law, title 17 of the United States Code, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, TITLE I-GENERAL REVISION OF COPYRIGHT LAW SEC. 101. Title 17 of the United States Code, entitled "Copyright", is hereby amended in its entirety to read as follows: As used in this title, the following terms and their variant forms mean the following: An "anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author. "Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. The "best edition" of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes. A person's "children" are his immediate offspring, whether legitimate or or not, and any children legally adopted by him. A "collective work" is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A "compilation" is a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works. A "Computer Program" is a work that consists of a series of instructions or statements which are prepared in order to achieve a certain result, regardless of the nature of the material object such as documents, punched cards, magnetic tapes or disks, or computer storage elements, in which the work is embodied. A computer program can be a derivative work of a flow chart, and either may be a derivative work of a Literary Work. "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. "Copyright owner," with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right. A work is "created" when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions constitutes a separate work. A "data base" is a work which is a compilation expressed in a form intrinsically intended for use in conjunction with automatic systems capable of storing, processing, retrieving or transferring information or in conjunction with any similar device, machine or process. A "derivative work" is a work based upon one or more prexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work." A "device," "machine," or "process" is one now known or later developed. To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is nonevanescent and sufficiently permanent or stable to permit it repeatedly to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission. The terms "including" and "such as" are illustrative and not limitative. A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. "Literary works" are works other than audiovisual works, A "search of a data base" is the examination or analysis of a data base by a computer for particular information relevant to an inquiry, whether or not the examination or analysis results in any display, copy or performance of all or part of the data base, and whether or not the inquirer received it in the same place or in separate places or at the same or at different times. "Sound recordings" are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. "State" includes the District of Columbia and the Commonwealth of Puerto Rico, and any territories to which this title is made applicable by an act of Congress. A "transfer of copyright ownership" is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. A "transmission program" is a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit. To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. The "United States," when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government. A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article." The author's "widow" or "widower" is the author's surviving spouse under the law of his domicile at the time of his death, whether or not the spouse has later remarried. A "work of the United States Government" is a work prepared by an officer or employee of the United States Government as part of his official duties. A "work made for hire" is: (1) a work prepared by an employee within the scope of his employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, as a photographic or other portrait of one or more persons, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. A "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes. An "instructional text" is a literary, pictorial, or graphic work prepared for publication with the purpose of use in systematic instructional activities. § 102. Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; (8) data bases; (9) computer programs. (b) In no case does copyright protection for an original work of authorship extent to any idea, plan, procedure, process, system, method of operation. concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. § 106. Exclusive rights in copyrighted works Subject to sections 107 through 117, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, data bases, and computer programs, to display the copyrighted work publicly. (6) in the case of data base works, to perform a search of the copyrighted work; (7) in the case of data base and computer program works, to read into, to store or reproduce for storage the work in automatic systems capable of storing, processing, retrieving, or transferring information, or in any similar device, machine or process. § 117. Scope of exclusive rights: Use in conjunction with computers and similar information systems Notwithstanding the provisions of sections 106 through 116, this title does not afford to the owner of copyright in a work other than a data base or a computer program any greater or lesser rights with respect to the use of the work in conjunction with automatic systems capable of storing, processing, retrieving, or transferring information, or in conjunction with any similar device, machine, or process, than those afforded to works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1976, as held applicable and construed by a court in an action brought under this title. § 118. Scope of exclusive rights in computer programs (a) Effect of obtaining possession of a copy of a computer program notwithstanding the provisions subsections (a) and (b) of § 109; it is an infringement of copyright for the possessor of a computer program to make a copy thereof by reproducing it in a computer unless authorized by the copyright owner. (b) The copyright status of the result of the execution of a program will be that of a derivative work of the information (which may be a program) processed or modified by the executing program and its ancillary programs. (c) DEFINITIONS—As used in this section, and in Sections 101, 102, 106, and 117, the following terms and their variant forms mean the following: (1) A "computer" is any automatic system capable of storing, processing, retrieving, or transferring information, or any similar device, machine or process. (2) A "flow chart" is an annotated graphical representation in which symbols are used to represent the sequence of operations in a program or a proposed program. § 301 Pre-emption with respect to other laws (a) On and after January 1, 1977, all rights in the nature of copyright in works that come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to copyright, literary property rights, or any equivalent legal or equitable right in any such work under the common law or statutes of any State. (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to: (1) unpublished material that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; (2) any cause of action arising from undertakings commenced before January 1, 1977; (3) activities violating rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 105, including breaches of contract, breaches of trust, violation of trade secrets, |