CONTU: New Works

The Commission was specifically assigned the {Page 44} responsibility to study and compile data on the creation of new works by the application or intervention of computers, to recommend any changes in copyright law or procedure necessary to preserve public access to such works, and to recognize the rights of copyright owners.176 This matter appears to have been included within the Commission’s mandate because of questions raised in the mid-sixties during early debates and hearings leading to the new law. For instance, in the 1965 report of the Register of Copyrights it was stated:

The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional element of authorship in the work (literary, artistic or musical expression or elements of selection, arrangements, etc.) were actually conceived and executed not by man but by a machine.177

This discussion may have stemmed from a concern that computers either had or were likely to soon achieve powers that would enable them independently to create works that, although similar to other copyrightable works, would not or should not be copyrightable because they had no human author. The development of this capacity for “artificial intelligence” has not yet come to pass, and, indeed, it has been suggested to this Commission that such a development is too speculative to consider at this time.178 On the basis of its investigations and society’s experience with the computer, the Commission believes that there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use. The computer, like a camera or a typewriter, is an inert instrument, capable of functioning only when activated either directly or indirectly by a human. When so activated it is capable of doing only what it is directed to do in the way it is directed to perform.

Computers may be employed in a variety of ways in creating works that may be protected by copyright. Works of graphic art may consist of designs, lines, intensities of color, and the like selected and organized with the assistance of a computer.179 Acomputer may be used to assist an artist in filling in numerous frames in an animation sequence, thus reducing the amount of time and effort otherwise needed to prepare an animated work.180

In the case of computer music, a program may be designed to select a series of notes and arrange them into a musical composition, employing various tonal qualities and rhythmic patterns. The computer may also be used to simulate musical instruments and perform the music so composed.181

In other instances, a computer may be used to manipulate statistical information to produce an analysis of that information. The resulting work may bear little similarity to the original form or arrangement of the work being analyzed, as in the case of an economic forecast produced by the manipulation of raw economic data. A computer may, on the other hand, be employed to extract and reproduce portions of a work.182 In every case, the work produced will result from the contents of the data base, the instructions indirectly provided in the program, and the direct discretionary intervention of a human involved in the process.

To be entitled to copyright, a work must be an original work of authorship. It must be a writing within the meaning of that term as used {Page 45} in the Copyright Clause of the Constitution.183 The Supreme Court has interpreted this requirement to include “any physical rendering of the fruits of creative intellectual or aesthetic labor.”184 The history of the development of the concept of originality shows that only a modicum of effort is required. In Alfred Bell & Co. Ltd. V. Catalda Fine Arts, Inc., a federal Court of appeals, speaking through Judge Frank, observed:

All 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.” . . . No matter how poor artistically the “author’s” addition, it is enough if it be his own.185

Thus, it may be seen that although the quantum of originality needed to support a claim of authorship in a work is small, it must nevertheless be present.186 If a work created through application of computer technology meets this minimal test of originality, it is copyrightable. The eligibility of any work for protection by copyright depends not upon the device or devices used in its creation, but rather upon the presence of at least minimal human creative effort at the time the work is produced.

Computers are enormously complex and powerful instruments which vastly extend human powers to calculate, select, rearrange, display, design, and do other things involved in the creation of works. However, it is a human power they extend. The computer may be analogized to or equated with, for example, a camera, and the computer affects the copyright status of a resultant work no more than the employment of a still or motion-picture camera, a tape recorder, or a typewriter. Hence, it seems clear that the copyright problems with respect to the authorship of new works produced with the assistance of a computer are not unlike those posed by the creation of more traditional works.

Needless to say, computers, like typewriters and other instruments, may be used to produce writings that lack the degree of originality held necessary to copyright. The statement “2 + 2 = 4” is, of course, not copyrightable, whether generated by a computer or written with a pencil. But the criteria that determine if a work is sufficiently original to qualify for copyright are already well established, and the intervention of the computer should not affect them.

Finally, we confront the question of who is the author of a work produced through the use of a computer. The obvious answer is that the author is one who employs the computer. The simplicity of this response may obscure some problems, though essentially they are the same sort of problems encountered in connection with works produced in other ways.

One such problem is that often a number of persons have a hand in the use of a computer to prepare, for example, a complex statistical table. They may have varying degrees and kinds of responsibility for the creation of the work. However, they are typically employees of a common employer, engaged in creating a work-for-hire, and the employer is the author. When the authors work together as a voluntary team and not as employees of a common employer, the copyright law with respect to works of joint authorship is as applicable here as to works created in more conventional ways, and the team itself may define by agreement the relative rights of the individuals involved.

To be used in the creation of a work, a computer must be controlled by a program and must ordinarily utilize data input from other sources. Both the program and the data may be copyrighted works or parts of copyrighted works. The question has been raised whether authorship or proprietorship of the program or data base establishes or may establish a claim of authorship of the final work. It appears to the Commission that authorship of the program or of the input data is entirely separate from authorship of the final work, just as authorship of a translation of a book is distinct from authorship of the original work. It is, of course, incumbent on the creator of the final work to obtain appropriate permission from any other person who is the proprietor of a program or data base used in the creation of the ultimate {Page 46} work. The unlawful use of a program or data base might limit or negate the author’s claim of copyright in the ultimate work, just as the failure of a translator to obtain a license from the proprietor of the translated work might prevent securing copyright in and making use of the translation.187 But this is not a question of authorship itself, and the author of the original work does not become the author of a translation merely because it is made from the original book without permission. Here, too, the situation with respect to works produced by the use of a computer does not appear to differ from that with respect to works otherwise created.

This approach is followed by the Copyright Office today in conducting examinations for determining registrability for copyright of works created with the assistance of computers.188 It comports with the rather summary conclusions reached by the Whitford Committee’s investigation of copyright problems in the United Kingdom.189 It is supported by the comment of experts in the fields of computer art and music and computer science with whom the Commission has consulted.190

However, the Commission recognizes that the dynamics of computer science promise changes in the creation and use of authors’ writings that cannot be predicted with any certainty. The effects of these changes should have the attention of Congress and its appropriate agencies to ensure that those who are the responsible policy makers maintain an awareness of the changing impact of computer technology on both the needs of authors and the role of authors in the information age. To that end, the Commission recommends that Congress, through the appropriate committees, and the Copyright Office, in the course of its administration of copyright registrations and other activities, continuously monitor the impact of computer applications on the creation of works of authorship. The subject should be considered by Congress as part of any hearings held on the general topic of the role of the computer in society. And the Copyright Office, in the course of its regular activities, should report to Congress if the impact of computers is found to raise questions of copyright law or policy requiring legislative attention.

The Commission, therefore, concludes that no special problem exists with respect to the “creation of new works by the application or intervention of such automatic systems or machine reproduction”; that existing statute and case law adequately cover any questions involved;’ and that no action by Congress is necessary at this time.

176 P.L. 93-573 (1974).

177 Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights 5 (1965).

178 Letter to the Commission, February 1978, from John McCarthy, director of Stanford University Artificial Intelligence Laboratory.

179 Computer graphics and other pictorial art forms have also drawn much attention.See Franke,Computer Graphics – Computer Art(1971); Davis, The Artist and the Computer, 78 Newsweek (September 13, 1971). Recently appearing in the New York Times was an article describing the possible future impact of computer and related technology on the creation and dissemination of works, such as musical compositions, dance, and the dramatic arts, that are potentially protectible by copyright. Greene, The Coming Impact of Technology on the Arts – Computer Violins and the Electronic Palette, New York Times (February 26, 1978).

180 For examples of such applications, see Transcript, CONTU Meeting No. 18, pp.2-10.

181 See the following works on computer music:

Howe, Electronic Music Synthesis (1975); Mathews, The Technology of Computer Music (1969); Hiller and Isaacson, Experimental Music (1959). See also Keziah, Copyright Registration for Aleatory and Indeterminate Musical Compositions, 17 Bull. Cop. Soc. 311 (1970).

182 For a discussion of the copyright status of directories produced by computer use, see Oberman, Copyright Protection for Computer Produced Directories, 22 ASCAP Copyright L. Symp.1 (1977).

183 U.S. Const., Article I, § 8, cl. 8.

184 Goldstein v. California. 412 U.S. 546. 561 (1973).

185 191 F.2d 99, 102-3 (2d Cir. 1951); but cf. Batlin v. Snyder, 536 F.2d 486 (2d Cir. 1976).

186 For example, arranging the layout of an answer sheet within the rigid confines imposed by its use in an optical reading device for computer input has been held to constitute sufficient originality. Harcourt Brace & World, Inc. v. Graphic Controls Corp., 329 F.Supp. 517 (S.D.N.Y. 1971).

187 See 17 U.S.C. § 103(b).

188 The Performing Arts Section of the Examining Division, for example, requests specific information about the authorship of a musical composition submitted for registration when the composition has been created with a computer. The work will he registered only when it is shown that the applicant exercised sufficient control over the production of the work to be considered its author.

189 Copyright And Designs Law: Report of the Committee to Consider the Law on Copyright and Designs 132-33 (1977).

190 These include Milton Babbitt, professor of music at Princeton University; Kenneth Knowlton, a computer scientist and computer artist at Bell Laboratories; Joseph Weizenbaum, professor of computer science at Massachusetts Institute of Technology; and John McCarthy, professor of computer science at the Artificial Intelligence Laboratory at Stanford University.