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tee on Copyright Revision, whose members represent a broad cross section of disciplines, academic institutions, and all levels of American education, has studied this bill intensively and has come to the conclusion that several of its provisions touching on computer use and computer programs may seriously hamper the educational and technological progress of the nation.
I. COMPUTERS AND EDUCATIONAL USES The statement of Dean Fred S. Siebert of the College of Communication Arts of Michigan State University has shown the impact of the revision bill on the use of computers in instruction and research and suggested an amendment to the current bill on behalf of the Ad Hoc Committee. Although my statement will deal primarily with the question of copyrightability of computer programs and the need for some type of corrective device in the new copyright act that would prevent it from being rendered obsolete by the movement of computer technology, a brief recapitulation of the weaknesses of the bill's exemption provision (section 110) insofar as computer uses by education are concerned seems appropriate.
The basic difficulty with section 110 of the revision bill as it now stands is that it eleminates the traditional exemption for schools and libraries and substitutes exemptions for computer operations with copyrighted works that are nominal rather than real. The "face-to-face" exemption in section 110(1) does not seem to apply to computer-assisted classroom performances or displays at all. The "transmission” exemption in section 110(2) permits the performance of a nondramatic literary or musical work or the display of a work by means of a transmission by an educational organization but only if (1) the performance or display is part of the school's systematic instruction, (2) the radius of the transmission is not more than 100 miles, (3) the transmission is made primarily for reception in classrooms, and (4) 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 similar device, machine, or process." The practical effect of section 110 (2) is to destroy any exemption for computer-assisted instruction. It prevents individualization—use of the computer by schoolchildren at their own speeds—which is of the essence of computer instruction and may be its primary advantage. Secondly, the restriction to use in a classroom runs contrary to the healthy trend of modern education to eliminate the confining limitations imposed by classroom walls. Finally, the 100 mile radius is arbitrary and apparently intended to destroy the viability of computer "networks”-a bias that is unexplained by the House Report and difficult to justify. The amendment to section 110 proposed by the Ad Hoc Committee and the codification of the principle that an injunction should not be available against educational users should strike a more reasonable and socially desirable balance between copyright proprietors and educational users than does the revision bill.
II. COMPUTER PROGRAMS The revision bill's expansive definition of copyrightable matter, which includes practically everything that is an original work of authorship and "fixed in any tangible medium of expression" (section 102) appears to extend copyright protection to the broad range of computer instruction and command devices that fall within the rubric "computer programs." As an original proposition, it seems highly dubious that computer programs should be accorded copyright protection. Programs are algorithmic plans for guiding the activities of machines to achieve functional results-operating printing presses, manipulating inventory, and recording payroll data--and are thus clearly distinguishable from the traditional subject matter of copyright protection--books, plays, and works of art. Moreover, there has yet to be any penetrating discussion of the implications of extending copyright protection to computer programs, as is evident upon examining the transcripts of the meetings held by the Copyright Office and the hearings held by the House subcommittee. Nor has there been any serious effort to determine whether programming economics need the stimulus of an artificial monopoly or whether the advantage secured by staying ahead of competition and keeping a program “private" is a sufficient incentive to continue the tremendous growth of the computer industry. For these reasons the Ad Hoc Committee adopted a resolution stating: "That a computer program (i.e., the instruction to the computer as distinguished from the substantive data stored in the computer) should not
ubject to copyright."
If any copyright monopoly is to be extended to computer programs, the key question is whether the copyright should protect against the use of the program in conjunction with the computer to achieve the functional goal for which the program was designed. The question must be answered in the negative. Copyright should not embrace the process or scheme embodied in the program but must be limited to a prohibition against the program's duplication. A firm holding a copyright on a program ought not to have a "property right in the mathematical, logical, or manipulative algorithms in the program that achieve a practical objective, such as operating and monitoring a printing press. Yet the broad definition of the proprietor's exclusive rights in section 106 of the bill could be read to extend protection to the process embodied in the program.
The vice of granting a copyright to computer programs that would cover the process is that its effect would be to give programs a level of protection similar to that accorded by patent, but without the safeguards and limitations that sur. round a patent grant. Traditionally, monopoly of systems, schemes, and processes has been granted only under patent, and only after proof to the Patent Office that there has been real "invention.” Moreover, the monopoly lasts only 17 years. Copyright of a computer program would be available without regard to true inventiveness, without advance examination by a governmental agency, and, under the revision bill, the protection would run for approximately 75 years. This type of protection for computer programs might well tie up and inhibit the develop ment of the computer program field. To some degree every program developed to day is a "derivative" of the programs written for the first computers made in this country. Thus, had there been copyright protection for programs in the past, had programming been carried out under the constant threat of actions charging infringement of existing copyrighted programs, it is doubtful whether the recent growth of programs and in programming techniques would have been possible.
The revision bill should be adjusted to make it clear that copyright does not extend to the process embodied in or the use of computer programs.* If any copyright on computer programs is to be recognized, it must only give the proprietors the right to duplicate the instructions in the program themselves and the right to prevent others from doing so. Even this right of reproduction must be carefully restricted, however, in order that the public's ability to employ the process contained in the program is not compromised. The power to control or bar duplication of the program cannot be allowed to prevent the use of the program in a computer.
III. THE NEED FOR A CORRECTIVE MECHANISM IN THE ACT Probably no industry in the United States is undergoing as radical and rapid a change as is the computer industry. In the future, the computer will yield startingly unique developments in education, library science, behavioral research, the various biological and natural sciences, and numerous other fields. Almost certainly, statutory regulations adopted today that purport to strike permanent balances between creators and computer users will be rendered obsolete or function in a negative or socially undesirable manner tomorrow. Despite these risks and despite the admission in the Report accompanying the House revision bill that "the problem of computer uses of copyright material” was "touched on rather lightly at the hearings,” the bill sets out comprehensive and restrictive provisions on computer uses without providing any mechanism for future revision. The infrequency of copyright revision and its consequences are well known. One merely has to examine the experience under a number of the provisions in the Copyright Act of 1909 to see how illusory the hope of revision is and how useless ancient provisions can become.
Some procedural device should be inserted in the revision bill to supply an element of self-correction; otherwise the new statute will be obsolete on the day it is enacted. There are a number of possible mechanisms: (1) the establishment of an administrative body with appropriate delegated power; (2) the creation of a body authorized to amend or add to the legislation subject to
*If any statutory monopoly on a program's process is deemed necessary to encourage the programming fraternity, patent appears to be the appropriate vehicle. The question of patent protection for computer programs is being studied by the Patent Office, which recently published a set of "guidelines for passing on applications for computer-program patents under the existing Patent Act. However, the Report of the President's Commission on the Patent System, p. 13 (November 17, 1966), recommends against patent protection.
Congressional veto; (3) the establishment of an advisory council or, as recommended by the Ad Hoc Committee, a Federal study commission directed to keep the subject of copyright under consideration, study the problems as they appear, and report to a Joint Congressional Committee, with the Committee then making proposals to Congress. Any of these devices also would be useful for purposes beyond that of accommodating the copyright law to the changing panorama of the computer. For example, an internal correction mechanism could be used from time to time to promulgate definite rules for photocopying on the basis of actual experience. In any event, some type of statutory procedure is urgently needed for the periodic reassessment of the copyright questions generated by the computer.
Senator BURDICK. We have a very complicated subject here and I am just wondering if our question, in the language of lawyers, is not a little moot. How many primary and secondary schools have computers or plans of computers?
Mr. MILLER. Plans for computers?
Senator BURDICK. The first question first: How many have computers!
Mr. MILLER. Here is our expert.
Mr. TAYLOR. I can speak for those in the New York area. There are several in the schools of New York State that are used mainly for business practices right now, but more and more are going into the curriculum use with the schools. So we are finding a number of these coming into use.
I would guess, offhand, that there would be at least 20 computers now in New York State which are in use in schools.
Senator BURDICK. But they are used for the business portion of the school?
Mr. Taylor. Some business, yes; and it is increasing now, I think, for use in curriculum also.
Senator BURDICK. How about colleges and universities?
Mr. MILLER. I was going to say that at the University of Michigan, we have a computer processing center with several computers, but they are used exclusively for data processing-grades, billing, and things of that nature. Then we have a center for research on learning and teaching, where we have at least two computers, and perhaps a third time-share system. But these are being used for curriculum development and the development of computer-assisted instruction techniques. At the moment all of our computer uses are experimental. We are not using computers in the classroom as yet. I do not think that is planned for the next few years.
Senator BURDICK. Then we do have some plans?
Mr. TAYLOR. Our use of computers in classrooms is mostly experimental, also, but they are being used more and more, and hopefully, within a short period of time, we will see the use of those in classrooms.
Mr. MILLER. Senator, if I could add a footnote. In my prepared statement, I suggest that the statute itself should contain an internal corrective mechanism. Copyright legislation in this country is revised once every half century, and by the third decade of experience under an existing piece of legislation, it is obsolete. I do not think we can expect quicker congressional action in the future than we have gotten in the past.
This morning the ad hoc committee's witnesses talked to you abont fair use, photocopying, academic and scholarly research. Senator
McClellan is so right when he suggests that it is almost impossible to articulate in statutory form all the potential uses that may or may not be fair. With an internal corrective mechanism in the new statute, it would be possible to deal not only with the study on computer technology, which we advocate, and the need for a constant rebalancing among computer users, publishers, and education, but also with a number of the problems discussed this morning, including the problem of fair use. Administrative regulation might be eminently more feasible and sensible than statutory language.
Senator BURDICK. As you know, we have some complaints that we legislate by regulation, too. Mr. MILLER. Yes.
Dr. WIGREN. Next we have Dr. Anna Hyer, executive secretary of the Department of Audiovisual Instruction of the NEA, and Mr. Robert Taylor, director of the educational media center for the Bedford public schools, in New York, on the uses of new educational technology.
Dr. HYER. Mr. Chairman and members of the subcommittee, I might say that we, too, would like to excerpt some from our testimony and would appreciate having it entered into record, although the middle portion will be read.
Senator BURDICK. Without objection, it will all be included in the record.
Dr. HYER. I would like to say that Mr. Taylor, who is with me, is with one of the most innovating schools in the United States, so we are happy to have him with us.
We are a department of several autonomous members related to the NEA. We are concerned with the improvement of education through the use of new media for teaching and learning. By this, is meant such items as pictures, slides, motion pictures, filmstrips, radio and television programs, recordings, and programed instruction.
Our members are drawn from both elementary and secondary schools, and from colleges and universities. They are usually in a supervisory capacity helping teachers and students select and use these materials, sometimes to produce materials, and to select and purchase materials and equipment.
Our association has also been a member of the Ad Hoc Committee on Copyright Law Revision since it was established. We support very heartily the testimony given this morning by the various groups that spoke.
I would like to say, too. that although I have some quarrel with the House report, I find the legislative history as reported in the House report satisfactory, for the most part. At a few points, the legislative history contained in the report is detrimental to the interests of education, and I will be pointing this out in my testimony.
What we thought we would do in our limited time is to show a few slides that would help us tell about newer ways that media are being used, newer ways that we are teaching, and contrast these with the older ways that are provided for in the legislation, and then to point out what part of the legislation or House report, as it is interpreted, we thought would adversely affect the learning situations that we portray.
I have broken down what I want to say into two parts. The first part will deal with performance and display not involving copying. This is just performance and display without copying.
Until quite recently, almost all uses of motion pictures, filmstrips, and the like in education took place in a classroom where the material, the projection equipment, the teacher, and the students were all present in a "face-to-face” teaching situation. This requires the moving into the classroom of the materials, the projection equipment, the projection screen, the darkening of the classroom for adequate reception, and the presence of a projectionist—sometimes the teacher. Sometimes projected materials were used with regular-sized classes and sometimes in large-group teaching. Gradually a change has taken place in the use of projected materials
. As a substitution for moving the materials, equipment, room-darkening facilities, screen, and the like into the classroom, it is frequently more convenient and equally satisfactory to bring the projected materials to the classroom situation electronically, such as over a closedcircuit transmission system.
In the next slide, it will show how this material that is being delivered to this classroom, in this case a motion picture, will be picked up and transmitted.
Mr. TAYLOR. If you are not familiar with the way a system like this works, the piece of machinery on the left is the motion picture projector. The blue box in the middle is essentially a mirror which directs the image into the television camera. This is then transmitted into one classroom or more than one classroom at a time.
We have found that by using systems like this the teachers are much more willing to use the materials, because we can get them to them much more rapidly and when they want them, when they need them in their instruction.
Dr. HYER. The proposed copyright bill would make such a transmission of such a picture and other audiovisual works illegal since face-to-face teaching activities have been interpreted in the House report on the bill as intending "to exclude broadcasting or other transmissions into a classroom whether radio or television and whether open or closed circuit."
Senator BURDICK. What section of the bill?
Dr. HYER. On page 10 of the bill, 110(2) (D)-no, that is at the bottom of page one; 110(1), performance or display of the work by instructors or pupils in a face-to-face teaching activity. It is the “face to face" there that gets us into trouble, unless you take a liberal interpretation of “face to face.” Here in the slide we just showed, the material would be in one room in the school and the students and eachers would be in another. So this would not be a face-to-face ntuation.
Mr. ROSENFIELD. May I break in for a moment?
Senator, the language that is referred to appears on page 70 of the report, which says that use of the phrase "in the course of faceto-face teaching activities," is intended to exclude broadcasts or other transmission into a classroom, whether radio or television and whether open or closed circuit.
This is the definition the House report gives to the language in 110(1).