CONTU: Scope of Copyright in Programs

This section of the report will explain the extent and limitations of a copyright for a computer program. The discussion of what rights copyright proprietors have and how those rights are limited does not depend upon the Commission’s proposal but is based upon various currently existing copyright doctrines.

The rights of any copyright owner are set out in section 106 of the Act of 1976. Many of the other sections of Chapter 1 of that act place limitations on those rights. Cases construing previous copyright acts also serve to define the bounds of copyright under the new law, at least when the new law does not end the vitality of those cases. Before examining the specific rights found in section 106, it is necessary to determine whether a work is copyrighted. If it is not, then the rights of a copyright owner are of no consequence.

Section 102(a) provides the basis for determining whether a work is copyrightable.92 The rule is simple: a copyrightable work is an original work of authorship fixed in a tangible medium of expression.93 There is a wealth of judicial interpretation behind the word original. Suffice to say that a work is original if it “[o]wes its origin to the author, i.e., is in-dependently created, and not copied from other works.”94

A description of what may not be copyrighted – ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries – is found in the same section of the copyright law.95 Because the distinction between copyrightable computer programs and uncopyrightable processes or methods of operation does not always seem to “shimmer with clarity” it is important that the distinction between programs and processes be made clear.96 There is a venerable copyright case and recent congressional language which make the distinction in the copyright sense relatively easy to articulate. In Baker v. Selden, the Supreme Court held that {Page 19} a valid copyright in a book describing a system of accounting, based upon the now universal T-accounts, did not bar others from using that accounting system.97 This holding is often misconstrued as imposing a limit on the copyrightability of works which express ideas, systems, or processes. As Professor Nimmer observes, “the rationale for the doctrine of Baker V. Selden in no event justifies the denial of copyrightability to any work.”98 The case properly stands for the proposition that using the system does not infringe the copyright in the description. This rule is found in section 102(b) of the new law. Both Houses of Congress agreed as to its application to computer programs:

Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law [emphasis added].99

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Copyright, therefore, protects the program so long as it remains fixed in a tangible medium of expression but does not protect the electromechanical functioning of a machine. The way copyright affects games and game-playing is closely analogous: one may not adopt and republish or redistribute copyrighted game rules, but the copyright owner has no power to prevent others from playing the game.100

Thus, one is always free to make a machine perform any conceivable process (in the absence of a patent), but one is not free to take another’s program. This general rule is subject to exceptions which restrict the power of copyright owners. These exceptions might be thought of as the “insufficient intellectual labor” exception and the “idea-expression identity” exception. Although they lead to similar results, they are really slightly different.

Apparent works of authorship may not qualify for copyright if they are not “the fruits of intellectual labor.”101 This reasoning has barred copyright for blank forms for recording data102 and for instructions of the rankest obviousness and simplicity, such as “apply hook to wall.”103 This exception would mean that a “program” consisting of a very few obvious steps could not be a subject of copyright.

The “idea-expression identity” exception provides that copyrighted language may be copied without infringing when there is but a limited number of ways to express a given idea. This rule is the logical extension of the fundamental principle that copyright cannot protect ideas.104 In the computer context this means that when specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to an infringement. In discussing an insurance company’s use of a lawyer’s copyrighted forms, a federal court of appeals stated in Continental Casualty Co. v. Beardsley:

[T]he use of specific language . . . may be so essential to accomplish a desired result and so integrated with the use of a . . . conception that the proper standard of infringement is one which will protect as far as possible the copyrighted language and yet allow the free use of the thought beneath the language. The evidence here showed that [the company] insofar as it has used the language of [the lawyer’s] forms has done so only as incidental to its use of the underlying idea. . . . in so doing it has not infringed [emphasis added].105

The emphasized language from the Beardsley decision indicates that copyright protection for programs does not threaten to block the use of ideas or program language previously developed by others when that use is necessary to achieve a certain result. When other language is available, programmers are free to read copyrighted programs and use the ideas embodied in them in preparing their own works.106 This practice, of course, is impossible under a patent system, where the process itself is protected, and difficult under trade secrecy, where the text of a program is designed not to be revealed.

Programs are a relatively new type of writing, and how copyright protects them is not universally understood. Because programs are used in {Page 21} conjunction with machines, there has not been universal agreement concerning the propriety of copyright protection. Programs should no more be considered machine parts than videotapes should be considered parts of projectors or phonorecords parts of sound reproduction equipment. All three types of works are capableof communicating with humans to a far greater extent than the coined code words discussed by Judge Hand in Reiss v.National Quotation Bureau.107 In all three instances, the medium in which copyrighted material is stored is moved past a sensing device at a set speed, causing electric current to flow, and ultimately resulting in the movement of machine parts to print words, display pictures, or create sounds. All of these events may occur through the use of machines without placing copyrighted works in them. A typist may create a printed document that is indistinguishable from computer output; a television system may produce pictures without the use of a fixed work; and instruments may be used to create the sounds which are found on phonorecords. All that copyright protection for programs, videotapes, and phonorecords means is that users may not take the works of others to operate their machines. In each instance, one is always free to make the machine do the same thing as it would if it had the copyrighted work placed in it, but only by one’s own creative effort rather than by piracy.

It has been suggested by Vice-Chairman Nimmer in his separate opinion that programs be copyrighted only when their use leads to copyrighted output.108 If this approach were adopted, it would make a program for text editing or the production of graphics copyrightable. It would, however, exclude a program which might be used to assist traffic flow in rush hours or to monitor the vital signs of patients under intensive care. This distinction is not consistent with the design of the Act of 1976, which was clearly to protect all works of authorship from the moment of their fixation in any tangible medium of expression. Further, it does not square with copyright practice past and present, which recognizes copyright protection for a work of authorship regardless of the uses to which it may be put. The copyright status of the written rules for a game or a system for the operation of a machine is unaffected by the fact that those rules direct the actions of those who play the game or carry out the process. Nor has copyright been denied to works simply because of their utilitarian aspects. It follows, therefore, that there should likewise be no distinction made between programs which are used in the production of further copyrighted works and those which are not. Should such a distinction be made, the likelihood is that entrepreneurs would simply require that programs produce a written and, by that token, an unquestionably copyrightable version of their output to obtain copyright in the programs themselves. Although the distinction tries to achieve the separation of idea from form of expression, that objective is better realized through the courts exercising their judgment in particular cases.

The Commission has considered at length the various forms in which programs may be fixed. Flow charts, source codes, and object codes are works of authorship in which copyright subsists, provided they are the product of sufficient intellectual labor to surpass the “insufficient intellectual labor” hurdle, which the instructions “apply hook to wall” fail to do.109 They may not be copied unless such copying is authorized by the proprietor of the copyright therein or by law. That protection continues as long as the program remains fixed in a tangible medium, up to the period provided in the Act of 1976.110

That the words of a program are used ultimately in the implementation of a process should in no way affect their copyrightability. Traditional works have led to processes both more rigid and more flexible than those to which computer programs lead. When a phonorecord or motion picture is used in conjunction with a {Page 22} properly working machine, the same result will occur on the first, the second, or the thousandth running. The chorus will remain silent until the fourth movement of Beethoven’s Ninth Symphony, and Bogart will stay in Casablancaforever. A similar rigidity is found when a copyrighted chart is used to determine the sine of a fifty-degree angle. The process is virtually immutable. That is less true when a program is used, since it contains alternative branches selected only after use has begun, meaning that the process may be different with every use.

The text of the new copyright law makes it clear that the placement of a copyrighted work into a computer – or, in the jargon of the trade, the “inputting” of it – is the preparation of a copy. This may be ascertained by reading together the definitions of copies and fixed found in section 101. In pertinent part, they read as follows:

“Copies” are material objects . . . in which a work is fixed.

A work is “fixed” . . . when its embodiment in a copy . . . is sufficiently permanent or stable to permit it to be perceived, reproduced. or otherwise communicated for a period of more than transitory duration.

Because works in computer storage may be repeatedly reproduced, they are fixed and, therefore, are copies.111

It is difficult, either as a matter of legal interpretation or technological determination, to draw the line between the copyrightable element of style and expression in a computer program and the process which underlies it. Some examples how copies of programs may be made may help to explain the nature of this problem and to place it in its proper perspective.

A computer program may be misappropriated in a variety of ways. In the first and most straightforward instance, the program listing or the programmer’s original coding sheets might be photocopied, which would clearly be an infringement. The unarguably copyrightable writing has been taken. But, what if the program, rather than being recorded on paper, is recorded on magnetic tape or disk? If the tape is used without authorization to produce a printed, human-readable version of the program, again an infringement has occurred, Should the result be different if the tape is copied? That copy may still be used to prepare a printed version at will. There is a one-to-one correspondence between the printed characters on paper and the magnetized areas of the tape. The tape is simply a version of the program from which a human-readable copy may be produced with the aid of a machine or device.

When a program is copied into the memory of a computer, it still exists in a form from which a human-readable version may be produced. That is, the copy in the computer’s memory may be duplicated, just as a version listed on paper or coded on magnetic tape may be. Only when the program is inserted – instruction by instruction – into the processing element of the computer and electrical impulses are sent through the circuitry of the processor to initiate work is the ability to copy lost. This is true at least under the present state of technology. If it should prove possible to tap off these impulses then, perhaps, the process would be all that was appropriated, and no infringement of the copyright would occur.

The movement of electrons through the wires and components of a computer is precisely that process over which copyright has no control. Thus, copyright leads to the result that anyone is free to make a computer carry out any unpatented process, but not to misappropriate another’s writing to do so.

Drawing the line between the copyrightable form of a program and the uncopyrightable process which it implements is simple in the first instance described above. But the many ways in which programs are now used and the new applications which advancing technology will supply may make drawing the line of demarcation more and more difficult. To attempt to establish such a line in this report written in 1978 would be futile. Most infringements, at least in the immediate future, are likely to involve simply copying. In the event that future technology permits programs to be stated orally for direct input to a computer through auditory sensing devices or permits future infringers to use an author’s program without copying, difficult questions will arise. Should a line need to {Page 23} be drawn to exclude certain manifestations of programs from copyright, that line should be drawn on a case-by-case basis by the institution designed to make fine distinctions – the federal judiciary.

Next section: Economic Effects of Program Copyright

92 The term copyrightable is less accurate under the new law than under the old, but the concept may be useful. Since copyright now exists from the instant a work is fixed, all copyrightable works are perforce copyrighted.

93 17 U.S.C. § 102(a).

94 1 Nimmer on Copyright, § 10.1 (1976), citing Alfred Bell & Co., Ltd., v. Catalda Fine Arts, Inc.,191 F.2d 99 (2d Cir. 1951) and Wihtol v. Wells,231 F.2d 550 (7th Cir. 1956).

95 17 U.S.C. § 102(b).

96 Parker v. Flook, supra note 83, at 4791-92.

97 101 U.S. 99 (1879).

98 1 Nimmer on Copyright, § 37.31 (1976).

99 Senate Report, supra note 1, p. 54; House Report, supra note 1, p.57.

100 1 Nimmer on Copyright, § 37.83 (1976).

101 Trade-Mark Cases, 100 U.S. 82 (1879).

102 Brown Instrument Co. v. Warner, 161 F.2d 910 (D.C. Cir. 1947).

103 E. H. Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571 (E.D. Pa. 1954).

104 See 2 Nimmer on Copyright, § 166 (1976) and 17 U.S.C. § 102(b).

105 253 F.2d 702, 706 (2d Cir. 1958); see also, Harcourt, Brace & World, Inc. v. Graphic Controls Corp., 329 F.Supp. 517 (S.D.N.Y. 1971).

106 The availability of alternative non-infringing language is the rule rather than the exception. The following colloquy to that effect took place at the tenth Commission meeting (Transcript, CONTU Meeting No.10, pp. 44-45):

Commissioner Miller: How many different ways are there to produce a program . . . ?

Dan McCracken [vice-president of the Association for Computing Machinery): An infinite number in principle, and in practice dozens, hundreds.

Miller: So it is comparable to the theoretically infinite number of ways of writing Hamlet?

McCracken: I believe so. It is not really true that there is a very restrictive way to write a program [which might make it] not copyrightable. I don’t believe that at all.

Miller: When you say “infinite,” I assume that along that scale there are increases and decreases in the efficiency with which the machine will operate?

McCracken: Perhaps.

Miller: In all of the programs that we have been talking about this morning, with particular reference to . . . compiler programs, does it continue to be true that there are an infinite number of ways of writing particular programs to do particular jobs?

McCracken: Yes. . . . There are hundreds of [different) compiler [programs for] going from FORTRAN to some machines . . .

107Supra note 61.

108 See this chapter under the Concurring Opinion of Commissioner Nimmer.

109 A flow chart is a graphic representation for the definition, analysis, or solution of a problem in which symbols are used to represent operations, data flow, or equipment. A source code is a computer program written in any of several programming languages employed by computer programmers. An object code is the version of a program in which the source code language is converted or translated into the machine language of the computer with which it is to be used.

110 For the works of individuals, life plus fifty years. For the works of employed, pseudonymous, or anonymous authors, seventy-five years. 17 U.S.C. § 302.

111 Insofar as a contrary conclusion is suggested in one report accompanying the new law, this should be regarded as incorrect and should not be followed, since legislative history need not be perused in the construction of an unambiguous statute. Cf. House Report,supra note 1, p. 53, with the plain language in the statute defining fixed.