Although numerous studies on the subject of copyright had been performed before CONTU came into existence, apparently none of them focused on the particular question of how changes in the copyright law would affect members of the general public considered as retail consumers. Previous efforts, such as the series of thirty-four studies conducted under the supervision of the Register of Copyrights, largely assumed a legal point of view and did not consider broad economic questions concerning the general public. However, the Commission came to believe that the new technologies whose effect on copyright it was charged to examine might have altered the relationship of the general public to copyright. The ubiquity of the photocopier meant that ordinary citizens could be engaging in potentially infringing acts. Like-wise, the latest developments in microcircuitry suggest that widespread use of computers in the home is not too many years away.

In such circumstances it seemed necessary to examine copyright questions from a consumer point of view. The Commission contracted with the Public Interest Economics Center (PIE-C) to provide background and briefing material for two conferences of representatives of nonprofit, public interest-oriented groups, convened by the Public Interest Satellite Association (PISA), a cocontractor. Such conferences seemed the most practical way to learn how proposed or actual changes in the copyright law would affect members of the general public.

Conclusions

Computers

It was PIE-C's conclusion that small, independent computer software firms need strong legal support for the production of software. Accordingly, the economists recommended that such firms be able to assert both trade secret and copyright interests in their products, {Page 129} depending on the sort of usage and amount of distribution. On the other hand, PIE-C feared that copyright protection for software produced by large manufacturers of computer hardware might reinforce the dominant position of those companies. Besides, large manufacturers already had reason to produce software as a complement to their machinery and did not especially need legal protection. It was thus concluded by PIE-C that only small firms-not large computer hardware manufacturers-should be able to assert copyright in software, without discussing the legal aspect of its proposal.

It was also recommended by PIE-C that data bases in computerized form receive protection. The economists of PIE-C saw no reason why copyright liability should not attach at both the input and output phases of computerized data base use. Such data bases promise to provide important general stores of information, and no consumer interest will be disserved by the dual copyright liability. Similarly, PIE-C decided that no consumer interest would be adversely affected by the provision of copyright protection for works in whose composition or preparation a computer was used as an aid. None of the representatives of the public interest-oriented groups at the PISA conferences voiced serious objections to these conclusions on computer issues.

Photocopying

In summary, PIE-C's basic conclusion was that no one making photocopies of copyright material should have to pay the publisher a copying fee unless the photocopies are resold. These economists found that the overall publishing industry had adequate returns. They were unable to find that photocopying especially has a deleterious effect on publishing. Hence, they saw no reason why students, teachers, researchers, and librarians should not be able to make essentially unlimited numbers of photocopies for their own noncommercial use. Specifically, PIE-C recommended that any organization that qualifies for tax exemptions under section 501 (c) (3) of the Internal Revenue Code be permitted to do such copyright-exempt internal photocopying as long as the copies are not resold. All of the organizations represented at the PISA conferences would have qualified for this exemption, and the attending representatives expressed strong support for this particular proposal.

General

There was some disagreement between the PIE-C economists and the PISA conference representatives about how best to define the public interest. The PIE-C economists chose to define the public interest in terms of members of the general public in their roles as retail consumers, while the PISA representatives felt that the sorts of nonprofit organizations for which they worked provided a more concrete embodiment of the public interest. Other unresolved issues concern the importance of competition in copyright industries and the permissibility of transfer of copyright ownership away from the original owner, the author. However, conference representatives believed and PIE-C eventually came to accept that small copyright owners face a relative disadvantage in protecting their copyrights and may need help from the government in this regard, but no specific suggestions were made as to the nature of such assistance.

The PISA Conferences

The conferences of representatives from nonprofit organizations in the public interest community were held on May 2 and June 13, 1977. Bert Cowlan of PISA chaired both sessions, assisted by Andy Horowitz. The authors of the PIE-C report and members of the Commission staff also attended each time. Commissioner Karpatkin and Janusz Ordover, one of the authors of the New York University report, attended the second meeting. The list of representatives follows:

Dr. Donna Allen, Media Report to Women, Washington, D.C.

Ms. Gertrude Barnstone, Texas Civil Liberties Foundation, Houston, Texas

Dr. Charles E. Bryant, Louis A. Martinet Legal Society, Baton Rouge, Louisiana

Dr. Carl Clark, Monsour Medical Foundation Field Office, Catonsville, Maryland

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Ms. Phyllis Cole, Peoples Computer Company, Menlo Park, California

Mr. Louis Hausman, National Council on the Aging, Washington, D.C.

Mr. Wayne Horiuchi,Japanese-American Citizens League, Washington, D.C.

Ms. Marion Hayes Hull, Cable Communications Resource Center, Washington, D.C.

Ms. Katherine Montague, Southwest Research & Information Center, Albuquerque, New Mexico

Ms. Irene Kessel, Consumer Federation of America, Washington, D.C.

Ms. Annie King Phillips, National Association of Neighborhood Health Centers, Washington, D.C.

Mr. Martin Rogol, National Public Interest Research Groups, Washington, D.C.

Mr. Mark Silbergeld, Consumers Union, Washington, D.C.

Dr. David Horton Smith, Boston College, Chestnut Hill, Massachusetts

Mr. Tom Thomas, National Federation of Community Broadcasters, Washington, D.C.

Ms. Deborah Sanchez Wunderbaum,Commission on Spanish-Speaking Affairs, Lansing, Michigan

Ms. Jan Zimmerman, National Women's Agenda, Santa Monica, California

Next section: Survey of Publisher Practices and Current Attitudes on Authorized Journal Article Copying and Licensing