committee on Administrative Practice and Procedure on the question of computers and privacy. I would like to start my statement with a few remarks along the same lines as those I made to Senator Long's committee.

When one talks about the computer, one is talking about a new communications medium. A computer is not an individual machine situated in a fixed position at a particular place. A computer is the heart of a new way of transferring information from point to point around the world, in a fraction of a second, and in great mass. Data processing is a technology that is less than two generations old. It is a technology that has enormous capacity and about which we know comparatively little at this point. Judging by our experience since World War II, we can assume that this technology will continue to expand and grow in a number of directions and that its applications in such areas as social, medical, and natural science research, teaching, library science, and a number of professions are bound to increase.

Yet, despite the embryonic character of this technology and our comparative ignorance of the directions it will take, Senate bill 597 forces us, perhaps as early as this year, to make decisions relative to the interrelationship between computer technology and copyright policy. Now, there is nothing wrong with trying to work out such an interrelationship, and enacting legislation codifying it, but Senate bill 597 is not the product of such an effort. Despite the fact that 10 years have gone into the development of the bill, there has been virtually no examination of the question of computers and copyright-there really hasn't been any attempt to investigate the ramifications of this emerging and exploding technology and to study its implications in terms of overall copyright policy. As we argued this morning, as Dean Siebert said a few moments ago, and as the committee report accompanying the House bill admits, nothing substantial has been done on the question of computers and computer technology. The magic words used by the House committee are touched on rather lightly.

In recognition of the lack of past study, we find that everybody is now calling for future study. In her statement yesterday for the American Textbook Publishers Institute, Mrs. Linden endorsed the need for study. So did Mr. Deighton's statement for the same organization. He called for more study, although his statement seems more oriented toward the problem of finding methods of handling copyright commissions. Those are his words. With all due respect, he seems to have prejudged some of the basic issues a bit. Mr. Manges, speaking for the American Book Publishers Council, also called for further study. And to round out the chorus, we of the ad hoc committee call for further study.

There is a difference in the clarions, however. The publishers say legislate now; study later. We say study first: legislate second. Now, why do the publishers say legislate now: study later-a proposition most rational men would say is erroneous on its face? Were Senate bill 597 a neutral bill with regard to data processing technology, were the bill silent, we could say, fine, since it will preserve the status quo for a few more years, let us enact the basic legislation as now proposed, have a Federal study commission appointed under any one of a number of procedures that could be set forth in the bill itself, and

ultimately, recommend thoughtfully considered, rational legislation to the Congress dealing with the computer.

But the simple fact is that Senate bill 597 is not neutral with regard to the computer-and this point must be emphasized. Contrary to the suggestions made yesterday by the publishing representatives, the bill is not silent on the question of the computer. Contrary to Mrs. Linden's remark in her prepared statement that "Senate 597 makes no reference to computers," Senate 597 explicitly deals with computers in section 110(2), and, because of the broad language of the bill, Senate 597 implicitly also deals with computers in sections 101, 102, and 106. Moreover, the committee report accompanying the House bill discusses computers at several points.

It should come as no surprise to the subcommittee that those provisions in the bill that do relate to data processing technology effectively restrict the utilization of computer technology by education to the point where the traditional exemptions have been rendered illusory. It also should come as no surprise to the subcommittee that the publishers' notion of legislate now; study later, simply reflects the fact that Senate 597 effectively blocks the use of computer technology with regard to copyrighted materials to a degree that makes the bill as favorable to their special interests as one could imagine. Ever since the inception of copyright legislation in the United States, the Congress has consciously followed a pattern of recognizing the status of education in our society and granting it certain exemptions, which we might term the traditional exemptions, for certain nonprofit uses of copyrighted materials. Insofar as computer technology is concerned, the proviso in section 110 (2) of Senate 597 deviates sharply from these traditional exemptions and denies their use to education when it desires to apply the blessings of the new technology to the instruction of the Nation's schoolchildren.

Senator BURDICK. Would you refer to that language?

Mr. MILLER. Yes, section 110(2) (D), in dealing with the so-called transmission exemption, which really is primarily directed at educational television, lists a series of limitations on the exemption, and as a final proviso it says that the exemption does not exist unless "the time and content of the transmission are controlled by the transmitting organization and do not depend on a choice by individual recipients in activating transmission from an information storage and retrieval system or any similar device, machine, or process."

That language, Mr. Chairman, imperils the ability of education to use computers and computer-assisted instruction at all levels of education and destroys a longstanding practice of legislative relief for the teaching profession from certain copyright restrictions. As I said before, Senator, this is not a neutral bill and section 110(2) (D) demonstrates that.

Senator BURDICK. If that language were deleted, would it be a neutral bill?

Mr. MILLER. No; I was just coming to a second aspect of the bill that is far from neutral. This is the question of input. If you piece together the language in sections 101, 102, and 106 and a variety of passages in the House committee report, which was the subject of great discussion and notoriety this morning, it is clear that the revi

sion bill makes it a copyright infringement to input copyrighted materials into a storage and retrieval system without regard to the possibility that the copyrighted materials may never be used in a way that will have any economic effect on the copyright proprietor. The mere act of taking a copyrighted work, putting it on punchcards or magnetic tape, and storing it in a data bank-without more-is an infringement under Senate bill 597. If permission is sought, presumably there will be a copyright toll on it.

It must be remembered that education buys books. It buys enormous quantities of them and in recent years has been buying them in everincreasing numbers. As a result, education pays the publishing industry enormous sums for its couyrighted products. Many of these books are put on library shelves. The fact that they are stored on library shelves and retrieved by faculty and students from library shelves has never been thought to justify the imposition of a second copyright payment. The fact that people go to library shelves and search for what they want, pull down or retrieve the books that strike their fancy, flip and scan pages, read entire books and think about their contents, and then restore the books on the library shelves does not bring down a second copyright toll. Yet, Senate bill 597 says that if we choose to store books in a data storage and retrieval system, as opposed to on library shelves, a second copyright tariff will be imposed. Senate bill 597 announces to teachers, scholars, and students, if you want to avoid being charged twice for gaining access to a work, you had better be prepared to turn your back on the new technology and go to the library shelves, lick your thumb, flip pages, and do your research in the old, manual, and primitive way. Don't ask the computer to help you; that will be a copyright infringement.

I submit, Mr. Chairman, that this does not make any sense. What right does the publishing industry have to extract a payment at input? Did they invent data processing technology? I think Senator Fong put his finger on it most penetratingly yesterday in a colloquy with Mrs. Linden. He suggested that charging for input without regard to the possibility that nothing of copyright or economic significance will ever be done with the stored material is like a restaurant imposing a cover charge for looking at the menu. Senate bill 597 effectively charges the computer user for the privilege of determining whether he wishes to eat any part of the copyright pie.

In summary, in two respects, the question of input and the question of the exemption in section 110(2) (D), the ad hoc committee thinks that the present copyright bill very badly restricts the development of computer technology and the use of this machinery in the most efficient and beneficial way possible.

It is perfectly clear that the publishers fear the capacities of data processing machinery. Indeed, we heard a great deal about their fears this morning. They fear the possibility that sometime in the future there will be a national computer network, tying together every major university in the country, so that with the press of the proverbial button, Dean Siebert's students in Michigan State University can dip into the data storage bank at Harvard University, or my class at the Michigan Law School can reach into a bar association library in New York to retrieve the full text of a book.

This is all possible, Senator. We do not deny it. But its realization is far in the future-far in the future. We are going to experience a long gestation period during which computer users will do little more than tinker and experiment on a very, very limited basis. The existing proposal, which is drafted in terms of the capacity of the distant future, will hamper the tinkering and experimentation that is so crucial in the immediate future.

Senator BURDICK. Is not the thesis of Mrs. Linden yesterday, that it is all far in the future and we might be acting prematurely at this time?

Mr. MILLER. That is correct, Senator. Might I suggest that the Congress would be acting prematurely by enacting the provisions in Senate bill 597. In other words, the crux of the matter seems to be a dispute over the structure of the Copyright Act pending a study in depth of the problems created by data processing and an analysis and development of a rational accommodation among education, the publishing industry, and the computer hardware companies. The ad hoc committee believes that pending some rational evaluation of these enormously complex and important questions, the Congress should maintain the traditional exemptions accorded to education. The fear of a fullblown university data network is an unreal one at this time.

Moreover, nothing should be done at this time to prejudice the development of the new technology. Educators and others should be encouraged to experiment and try to ascertain the capacity of the new data processing devices. Let them do so while the much needed study is in progress. That is the essence of the proposal laid before this subcommittee by the ad hoc committee with regard to the text of section 110. It is appended to Dr. Wigren's statement.

If I might shift my attention to the question of computer programs. Here again, the proposed legislation speaks and it speaks without the benefit of a legislative record. Several people appeared before the House committee and suggested that copyright protection be extended to computer programs. Their testimony was not challenged and the implications of the suggestion were not tested. Their position in effect has been adopted by Senate bill 597 because the definition of "copyrightable works" in section 102 includes any original work of authorship "fixed in any tangible medium of expression," which "can be perceived, produced, or otherwise communicated, either directly or with the aid of a machine or device." That means that if a computer program is put onto punchcards, magnetic tape, disks, or any other vehicle, it is copyrightable because it has been fixed in a tangible medium of expression and can be perceived by machines.

It is the position of the ad hoc committee, and I am quoting from a resolution adopted by the committee, "That a computer programthat is, the instruction from the computer as distinguished from the data stored in the computer-should not be subject to copyright."

The concept "computer program" covers any set of instructions or commands that are directed to a computer or data processing machine. A program can monitor the operations of a steel mill, for example. It can compile an inventory or payroll or prepare an index or concordance of someone's poetry. In short, programs can do a multitude of things. The important point to recognize is that a computer program

is a functional item. It is a mathematical and logical sequence of instructions or commands to a mechanical device and should be distinguished from books or plays or motion pictures or poetry-the forms of expression that traditionally have been covered by our copyright legislation.

The vice of granting a copyright to a computer program is the following: if you recognize a copyright in a program, it is quite conceivable-indeed, the broad language in sections 102 and 106 of the proposed legislation seem to so indicate that the copyright protection may extend to or embody the process, scheme, or plan that the program uses to achieve a functional goal. This means that if somebody develops a program for running a steel mill, the scheme or process captured on the program might become subject to copyright appropriation. This has never been considered a proper function of copyright law in this country. Indeed, the Supreme Court has indicated under an earlier copyright act that copyright protection does not go this far. In effect, a copyright that extended to the functional process expressed in the program would give the proprietor of the computer program copyright is a patent. There are several very serious repercussions of recognizing patentlike protection under the guise of copyright. First, it would be available without satisfaction of the patent test of inventiveness, which is a very difficult-intentionally so-test to meet. The copyright test is simply one of originality. Secondly, there would be no scrutiny by an administrative agency before the grant of protection. The Patent Office scrutinizes and evaluates every patent application, whereas the Copyright Office simply examines the technical sufficiency of the registration application without passing any qualitative judgment on it. Third, patent protection lasts 17 years. Under Senate bill 597, a copyright lasts for the life of the proprietor plus 50 years, or approximately a period of 75 years.

It is quite possible that recognizing patentlike protection for computer programs would very seriously stultify the programing art, which is, by and large, a derivative art based on fairly well established and commonly used mathematical and logical principles. It is also quite possible that the recognition of monopoly power over computer programs would create rather serious problems of vertical integration in the computer industry. Dominant hardware manufacturers might gain control over a major share of the copyrights in the software or computer program area and impair competition.

On behalf of the ad hoc committee, I would like to urge this committee to clarify the proposed copyright act so that if copyright protection is to be granted to computer programs at all, and it is far from clear that any such protection is needed, that the copyright monopoly extends solely to duplication or replication of the program, and does not incorporate the art, process or scheme that is fixed in the program. Thank you.

(The complete prepared statement of Mr. Miller, above-referred to, follows:)

STATEMENT OF ARTHUR R. MILLER, PROFESSOR OF LAW, UNIVERSITY OF MICHIGAN

The bill currently before the Senate (S. 597) to revise the copyright laws of the United States contains a number of provisions relating to computer programs and the use of copyrighted material in computer operations. The Ad Hoc Commit