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- Table of Contents -

Introduction to the online version

Chapter 1 – The Commission and Its Recommendations

Chapter 2 – The Establishment, Mandate, and Activities of the Commission

Chapter 3 – Computers and Copyright

- Background

- Computer Programs

   - Recommendations for Statutory Change

   - Recommendation for Regulations

   - Case for Copyright Protection for Programs

   - Copyright and Other Methods Compared

   - Scope of Copyright in Programs

   - Economic Effects of Program Copyright

   - Cultural Effects of Program Copyright

   - Concurring Opinion of Commissioner Nimmer

   - Dissent of Commissioner Hersey

   - Dissent of Commissioner Karpatkin

- Computer Data Bases

- New Works

Chapter 4 – Machine Reproduction – Photocopying

Chapter 5 – Summary

Appendix A – Summary of the Legislative History of Computer-Related Issues and the Photocopy Issue

Appendix B – Public Law 93-573 and Public Law 95-146

Appendix C – Commissioners

Appendix D – Staff

Appendix E – Lists of Witnesses

Appendix F – Alphabetical Listing of Persons Appearing before the Commission

Appendix G – Transcripts of Commission Meetings

Appendix H – Summaries of Commission-Sponsored Studies

Appendix I – Bibliography

Appendix J – Selected Provisions of the Copyright Act of 1976 and Copyright Office Regulations

Full table of contents

PDF version of the report

Picture of commissioners and staff

Final Report of the National Commission on New Technology Uses of Copyrighted Works

Chapter 3 – Computers and Copyright

Recommendations for Statutory Change

To make the law clear regarding both proprietors’ and users’ rights, the Commission suggests that the following changes to the Copyright Act of 1976 be made:

1. That section 117 as enacted be repealed.

2. That section 101 be amended to add the following definition:

A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

3. That a new section 117 be enacted as follows:

§ 117: Limitations on exclusive rights: computer programs

Notwithstanding the provisions of § 106, it is not an infringement for the rightful possessor of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1)  that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2)  that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

The 1976 Act, without change, makes it clear that the placement of any copyrighted work into a computer is the preparation of a copy and, therefore, a potential infringement of copyright. Section 117, designed to subject computer {Page 13} uses of copyrighted works to treatment under the old law, vitiates that proscription, at least insofar as machine-readable versions are not copies under the 1909 Act.48 Therefore, to prevent any question concerning the impropriety of program piracy and to assure that all works of authorship are treated comparably under the new law, section 117 should be repealed.49

Because the placement of a work into a computer is the preparation of a copy, the law should provide that persons in rightful possession of copies of programs be able to use them freely without fear of exposure to copyright liability. Obviously, creators, lessors, licensors, and vendors of copies of programs intend that they be used by their customers, so that rightful users would but rarely need a legal shield against potential copyright problems. It is easy to imagine, however, a situation in which the copyright owner might desire, for good reason or none at all, to force a lawful owner or possessor of a copy to stop using a particular program. One who rightfully possesses a copy of a program, therefore, should be provided with a legal right to copy it to that extent which will permit its use by that possessor. This would include the right to load it into a computer and to prepare archival copies of it to guard against destruction or damage by mechanical or electrical failure. But this permission would not extend to other copies of the program. Thus, one could not, for example, make archival copies of a program and later sell some while retaining some for use. The sale of a copy of a program by a rightful possessor to another must be of all rights in the program, thus creating a new rightful possessor and destroying that status as regards the seller. This is in accord with the intent of that portion of the law which provides that owners of authorized copies of a copyrighted work may sell those copies without leave of the copyright proprietor.50

Because of a lack of complete standardization among programming languages and hardware in the computer industry, one who rightfully acquires a copy of a program frequently cannot use it without adapting it to that limited extent which will allow its use in the possessor’s computer. The copyright law, which grants to copyright proprietors the exclusive right to prepare translations, transformations, and adaptations of their work, should no more prevent such use than it should prevent rightful possessors from loading programs into their computers.51 Thus, a right to make those changes necessary to enable the use for which it was both sold and purchased should be provided. The conversion of a program from one higher-level language to another to facilitate use would fall within this right, as would the right to add features to the program that were not present at the time of rightful acquisition. These rights would necessarily be more private in nature than the right to load a program by copying it and could only be exercised so long as they did not harm the interests of the copyright proprietor. Unlike the exact copies authorized as described above, this right of adaptation could not be conveyed to others along with the licensed or owned program without the express authorization of the owner of the copyright in the original work. Preparation of adaptations could not, of course, deprive the original proprietor of copyright in the underlying work.52 The adaptor could not vend the adapted program, under the proposed revision of the new law,53 nor could it be sold as the original without the author’s permission.54 Again, it is likely that many transactions involving copies of programs are entered into with full awareness that users will modify their copies to suit their own needs, and this should be reflected in the law. The comparison of this practice to extensive marginal note-taking in a book is appropriate: note-taking is arguably the creation of a derivative work, but unless the note-taker tries to copy and vend that work, the copyright owner is unlikely to be very concerned. Should proprietors feel strongly that {Page 14} they do not want rightful possessors of copies of their programs to prepare such adaptations, they could, of course, make such desires a contractual matter.

Next section: Recommendation for Regulations

48 If they are not, then their unauthorized duplication would not be an infringement just as the unauthorized duplication of sound recordings was largely without the scope of copyright before February 15, 1972. (See this chapter under Computer Programs.)

49 This appears consistent with congressional intent that section 117 should only be effective pending the Commission’s report. (See House Report, supra note 1, p. 116.)

50 17 U.S.C. § 109(a).

51 17 U.S.C. §§ 101 and 106(2).

52 Grove Press, Inc., v. Greenleaf Publishing Co., 247 F.Supp. 127 (E.D.N.Y. 1965).

53 See this chapter under Recommendations for Statutory Change.

54 17 U.S.C. § 106(2) and Gilliam V. American Broadcasting Co., 192 U.S.P.Q. 1 (2d Cir. 1976) .