CONTU: Cultural Effects of Program Copyright

The introduction of new means of communication with their attendant new modes of expression often raises questions regarding the intrinsic values of such works. The works of Beethoven, Chopin, Stravinsky, and Hindemith all enjoyed less than immediate success. Early works of all of these innovative composers were condemned for being outside what was then felt to be the cultural mainstream. But, as perceptions have changed, the contributions these composers made to breaking with tradition and enriching the breadth of expression in our musical heritage have overcome the barriers to new ideas which traditionalists would have imposed.

The history of copyright legislation and the interpretations courts have given to the Copyright Clause all demonstrate that there is no basis, as some would suggest, for the imposition of a standard of literary or artistic merit for determining copyrightability. The perils of such an approach have long been recognized. Mr. Justice Holmes, in upholding copyright in a chromolithographed circus poster, said:

It would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of pictorial illustrations_,outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value-it would be bold to say that they have not an aesthetic and educational value-and the taste of any public is not to be treated with contempt.123

This principle has been consistently followed in cases emphasizing that “[a]ll that is needed to satisfy both the Constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own’” [footnote omitted].124 These judicial opinions clearly illustrate that courts have assiduously avoided adopting the critic’s role in evaluating the aesthetic merits of works of authorship. To attempt to deny copyrightability to a writing because it is capable of use in conjunction with a computer would contravene this sound policy. Where could a meaningful line of demarcation be drawn? Between flow chart and source code? Between source code and object code? At the moment of input into a computer or microprocessor? The Commission believes that none of these is appropriate. The line which must be drawn is between the expression and the idea, between the writing and the process which is described. This proposal acknowledges the propriety of keeping cultural value judgments out of copyright. The only legitimate question regarding copyrightability is: Is the object an original work of authorship?

The Copyright Clause of the Constitution empowers Congress to establish a patent and copyright system to improve the general public welfare, by “[p]romoting . . . the progress of Science and Useful Arts.” Patent protects inventions, and copyright protects the writings of {Page 26} authors. As previously discussed, the term writinghas been liberally construed to embrace the fruits of intellectual and aesthetic labor embodying any modicum of original effort. Copyright protects a wide range of works; some with great cultural value, such as the novels of Pulitzer Prize winners and Nobel Laureates, original paintings, award-winning movies, and masterful musical compositions. It likewise shields works of little or no aesthetic merit: advertising copy, picture postcards, videotaped wrestling matches, violent and sexually explicit films, and the most banal popular music. The contribution of these latter works to our culture is at best questionable. Neither the Supreme Court nor any governmental or private body has been able to assess the social or cultural impact of sexually explicit materials, let alone the cultural impact of the protection of such works by copyright. Their contribution to the quality of life is not quantifiable; their effect may not even be qualitatively identifiable. The kinds of qualitative impacts which computer software may have on the quality of life may, at least, be described.

Declining costs and improved performance of electronic hardware are bringing powerful miniature computer systems into small businesses and the home. These computers and the more powerful and cheaper generations of similar systems which will follow have the potential to enrich our lives and aid in communication among humans in ways as yet inconceivable. Personalized high-quality education, at present available only to the wealthy, will be within the reach of the small school system and the average consumer in the home. Health care in public clinics will be provided on a more individualized, personal basis by using computers to aid the physician in communicating with his patient through complete and accurately maintained medical records. Leisure time may be enriched by both studying and game-playing on home computer systems. The possibilities provided by the technology are virtually limitless. They are dependent only on the ingenuity employed in developing the programs that enable humans to communicate their idea’s to one another through the intermediation of the machine and on the willingness of creators of such works to disseminate them at reasonable prices. In considering the quality of life in this country, failing to weigh the positive contributions of computers and the programs with which they are used would indeed be a mistake.

At the same time, any dehumanizing effects which might be attributable to the increasing impact of computer uses upon society are utterly unrelated to the mode of protection employed to safeguard program language. It is clear that the uses to which computers are put depend entirely upon the intent of their users and not at all upon the mechanisms designed to protect programs. To say that copyright for programs somehow is responsible for social problems ostensibly caused by computer uses is akin to arguing against copyrights for the worst of television shows or against patent protection for components of gas-guzzling cars on the grounds that such works are detrimental to American culture.

Next section: Concurring Opinion of Commissioner Nimmer

123 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903).

124 Alfred Bell and Co. v. Catalda Fine Arts, Inc._,191 F.2d 99, 102-3 (2d Cir. 1951).