to a few. Without this separate right media such as magnetic tape or punched cards, might be passed from user to user as soon as each user had read it into the permanent storage element of his computer.

The adequate protection of a program requires more than the mere protection against copying of the code itself. Considerable effort and expense are spent in working out the sequence of events or steps (operations) that a program will follow and in selecting the processes to carry out the various individual steps. Now it is understood that subsection 102 (b) is included in the Bill to ensure that copyrighting of programs is not somewhat the equivalent of patenting its system concepts. There is no quarrel with this. And while we note that this subsection “in no way enlarges or contracts the scope of copyright protection" we do not believe that the "expresssion adopted by the programmer" should be accorded any narrower definition than is generally accorded any other writing. Thus, the expression of a programmer should be deemed to include that level of abstraction that Judge Learned Hand had in mind when he stated in Nichols v. Universal Pictures, 45 F.2nd 119, 20 C.O.Bull 528 (2 CCA 1930), the following: “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected since otherwise the playwright could prevent the use of his "ideas'," to which, apart from their expression, his property is never extended." We are not suggesting that actual process or methods embodied in a program be copyrightable; however, we believe that the arbitrary aspects of collections and patterns of events and processes that reflect the programmer's unique personality should be copyrightable. Collections and patterns of events and processes that are mandated by the result to be accomplished, that is, are function driven, should be beyond the ambit of copyright law.

To ensure the copyrightability of data bases, it is proposed that they too be a identified as a separate work of authorship under Section 102 of the Bill. An appropriate definition has been inserted in Section 101.

A limited right would be given to the copyright proprietor of a data base. This limited right would be the right to perform a search of the data base. Accordingly, Section 106 of the Copyright Bill is amended to include the following statement: "In the case of data base works, to perform a search of the copyrighted work." Section 101 of the Bill is amended to include a definition for "search of a data base." Since Register Ringer in her statement of October 9, 1975, points out that CONTU's mandate does not include the question of software protection, we urge that the proper interpretation of the "expression" of the programmer be made clear.

2. Control of the unfair utilization of a data base or computer program work in a computer, can best be effected by giving the author or copyright proprietor the exclusive right to input such copyrighted work into a computer. This control would be effected by amending Section 106 to include that the owner of copyright has the exclusive right "to read into, to store or reproduce for storage in a computer." This amendment of Section 106 is accompanied by an exception making amendment of Section 117. (Section 117 has as its objective to maintain the status quo with regard to computer input as of the time prior to the passage of the Bill.) While computer input may be a subject to be recognized by the recently created National Commission, we believe the law proposed for data bases and computer programs is correct and its passage need in no way impede evaluation of other items by the Commission.

3. Paragraph 3 of subsection (b) of section 301 of the Bill recites several “not equivalent" to copyright rights which are not preempted by the Bill. To avoid any interpretation that activities violating other rights do not include the unnamed activities violating trade secrets and misappropriation doctrines, the terms "violation of trade secret" and "misappropriation" have been inserted in the paragraph 3.

It is uncertain what effect the presence of notice on unpublished materials and/or deposit of copies in the Copyright Office can have upon the non-equivalent rights involving activities such as breaches of trust, violation of trade secrets, and the invasion of privacy. To eliminate this uncertainty, the sentence as marked at the end of paragraph 301 (b) (3) is suggested.

4. Data bases and computer programs entail significant economic investment equal to if not exceeding that of sound recordings. Accordingly, the same pro

tection given sound recordings should be achieved by inserting the words "computer programs, data bases, or" before "sound recording" in line 8 of subsection (a) of Section 506 of the Bill.

5. Extension of the right of manufacture so that English works created in another country could conveniently be produced in distribution form therein, would merely allow the work to be manufactured where it was written. Thus, if a domestic corporation were to have its United Kingdom branch write a document which is equally usable in England and in the United States, it would only seem fitting and proper that such document be printed and distributed from the United Kingdom by the original development group if that is the most socially economic way of doing business. Such situations are to be distinguished from those where an American publisher merely shops around for where the docu-ment can be most economically printed. This provision could be written into the Bill by amending the end of subsection (a) of Section 601 to read additionally: "or were written in the country in which they have been manufactured."

6. The Copyright Bill as presently worded would enable the Library of Congress to make any use or disposition of the deposit copies. Does this include the right to distribute a computer program to another Government agency for incorporation into a computer? Or to distribute a data base composition to another Government agency for their use of it in lieu of a purchased one? Since it is understood that the Library of Congress merely requires deposit copies in order to maintain its reference library, it is proposed that the words "for the use or disposition of the Library of Congress" in subsection (b) of Section 407 to be amended to read: “for the purpose of reference within the Library of Congress." 7. If a person has title to a copy of a copyrighted work, his rights of utilization and disposition may be greater than if he merely is a bailee. Considering the position of the previous item, it is proposed that the Government should not receive title to the deposit copies, rather merely a right of custody. This would be achieved in the Bill by amending the last line of subsection (a) of Section 704 by substituting the words "in the custody" for the phrase "the property." Subsection 704(b) would be amended to delete the phrase ", or for exchange or transfer to any other library," and to substitute the word "only." Hence, the Library of Congress would not be authorized to distribute deposit copies to the detriment of the depositor's marketing efforts.

8. 28 U.S.C. 1498 provides that the exclusive remedy of the owner of a copyright infringed by a contractor acting for the Government with the authorization or consent of the Government, is against the Government. This does not say that the contractor did not commit an act for which it might be liable to prosecution. Elimination of this exposure would be accompanied in the Bill by adding to the end of subsection (a) of Section 506, the following sentence: "The criminal sanctions of this Subsection shall be of no force and effect as to any person who provides the Government with an infringing work or phonorecord, provided the Government exercises its rights under the provisions of 28 USC 1498."

9. The opposition to any interpretation of "fair use" which would authorize systematic or concerted photocopying or copyrighted works is primarily intended to offset any possible enlargement of the holding of "fair use" by the Court of Claims in Williams and Wilkins v. U.S., 180 USPQ 49 (November 27, 1973), which was affirmed by an equally divided U.S. Supreme Court on February 25, 1975, CBEMA endorses the since inserted subsection (g) of Section 108.

"SECTION ANALYSIS OF ITS PROPOSED AMENDMENTS TO H.R. 2223"

SECTION 101

Definitions are proposed for computer programs, data bases, and search of a data base.

An amendment of the definition for "A work is fixed" is proposed to insure that the momentary and transient storage of data bases and computer programs in the main (interior) memory of a computer constitutes a copying, storing, or reproduction thereof. There has been some comment in the literature that the copying of a copyrighted work into the main storage element of a computer might not be an infringement, because the recorded state of a copyrighted data base or program in main memory (and some other computer storage elements) might only obtain for a few microseconds. As presently written in the Bill, it is believed that the definition intends among other things for an immediately self-decaying embodiment not to be a fixation. Storage in main memory is not self-decaying

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 subsection 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 normally 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:

TITLE 17-COPYRIGHTS
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§ 101. Definitions

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.