C p._'r~jrn,,n Pv~'s~ Lid 1'~'~ P r ln !cd in Grea t Br i ta in

COPYRIGHT PROTECTION FOR COMPUTER PROGRAMS AND OTHER COMPUTER

READABLE WORKS*

SAMUEL H. JOSELOFF

National Biomedical Research Foundation, Georgetown University Medical School. 3900 Reservoir Road. N.W., Washington, DC 20007. U.S.A.

(Receired 12 June 1978)

COPYRIGHT protection for computer programs and other computer readable works is not clear under the present statutes. The latest revision to the copyright laws, in 1976, established copyrightability independent of the medium in which a work is fixed, and thus resolved the situation for photocopies of publications and for microfilm and video- tape recordings that cannot be read directly but can be made readable with the aid of a device. However, the application of the copyright laws to computer productions must still be defined more precisely.

The revised law states that "the owner of copyright . .. has the exclusive r ights . . . ( l ) to reproduce the copyright work in copies or phonorecords and (2) to prepare derivative works based upon the copyrighted work." With certain specific exemptions (a computer program as it is actually written is protected but not the idea), the right of conversion of a copyrighted work from one medium to another is therefore reserved to the pro- prietor. A converted work is also probably protected if it is converted to a computer readable format without actually using a computer to perform the procedure. However, the status of a computer readable work that is used in a computer or converted to a computer readable format using a computer is unclear.

A recent study by the National Bureau of Standards, entitled Copyright in Computer- Readable Works: Policy Impacts of Technological Change, NBS Spec. Publ. 500-517, by Roy G. Saltman, has addressed itself to the problem of the copyright laws and the computer. Some of the major recommendat ions of this study are summarized below :

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Protection

Computer programs are involved in a variety of research and professional activities and are more than merely a set of instructions to operate a machine. These are original writings of authors deserving copyright protection, and "the copier of an error free program has obtained something of considerable value at minimum expense."

Source code program

Only the source code program (the language in which the programmer writes the program) should be copyrighted. The object code, which is usable directly by the com- puter, is virtually unreadable by humans and reveals very little by itself. Therefore "the conversion of a source program into object code constitutes the making of a copy since no additional logic has been added to the p r o g r a m . . , the object code should be protected by virtue of the copyright in the original source program."

Conversion to another source language

The conversion of a program to another source language should be considered the making of a derivative work and the translation should be protected by copyright laws.

* Adapted by Dr. Samuel H. Joseloff from "'Copyright and the Computer." by Shirley Radack, Dimensions 62, 8-11, March (1978}.

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266 SAMUEL H. JOSELOFF

Duration

The duration of protection for computer programs should be the same as for other copyrightable works.

COPYRIGHT FOR COMPUTER READABLE DATA BASES

Protection

Computer readable data bases, whether compilations, collective works or reference works of a single author, should be protected by copyright laws. After all, these computer readable data bases are similar to such compilations as encylopedias, which are copy- righted. This protection does not apply to the individual materials in the compilation, but only to the arrangement or organization of the material.

Library

The study recommends that "'data bases be deposited in the Library of Congress where anyone can examine any computer readable work published with copyright notice." Yearly updates should be made, and totally new data bases deposited every ten years.

Definition of publication

Concerning the question of what constitutes publication of a data base that has not been previously published in a paper edition, the study states that a reasonable definition is "'if it is offered to the public on a query basis such that any item in the data base is capable of being retrieved and printed out and the printouts become the physical property of the users on the basis of unrestricted disclosure." The display of a data base at a terminal for use by the proprietor or licensee of a data base is not considered for publication.

LEGISLATIVE SUGGESTIONS

Sale

Legislation should be enacted so that the sale of computer readable works would be more attractive than their lease or rental. The buyer would own the specific copy or phonorecord and would have the right to resell that copy. The copyright owner, however, would retain the right to make and sell additional copies of his work and also to perform and display the work publicly.

Internal use

The owner would have the right to make copies for internal use, but the work should not be available to outsiders through a computer network or any other way. Copies made for internal use should be destroyed when the copyrighted work is sold.

Royalty payments

It would be valuable to have royalty payments through clearinghouses and price differentials between individual and institutional subscribers to periodical works.

Public policy issues about the copyright laws are presently before the National Commission on New Technological Uses of Copyrighted Works (CONTU), which was established to advise Congress on the use of copyrighted materials in conjunction with computers. Hopefully this National Bureau of Standards study will be useful to these decisionmakers, as well as to other policy analysts and researchers.