CONTU: Case for Copyright Protection for Programs

Under the Constitution, Congress has the power to grant authors exclusive rights in their writings to promote the progress of science and the useful arts.58 On many occasions since 1790, Congress has exercised that power: first by creating a Copyright Act, and thereafter by periodically revising it and expanding its scope. That the word writingin the Constitution has broad and dynamic meaning may be seen in the nature of works that have been found constitutionally copyrightable. Notwithstanding the apparent distinction between them and literal writings, photographs, commercial art, motion pictures, and sound recordings have all been found to be writings.59

Judge Learned Hand, in an opinion which has been characterized as the “touchstone” for interpreting the constitutional writing requirement,60 found copyrightable a series of meaningless words coined by a copyright claimant for use as a code for sending cables.

If . . . models or paintings are “writings,” I can see no reason why [the coined] words should not be such because they communicate nothing. They may have their uses for all that, aesthetic or practical, and they may be the production of high ingenuity, or even genius. . . . [O]ur Constitution [does not] embalm inflexibly the habits of 1789 . . . its grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter.61

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As previously noted, a program is created, as are most copyrighted works, by placing symbols in a medium, In this respect, it is the same as a novel, poem, play, musical score, blueprint, advertisement, or telephone directory. However, it is not the same as a phonorecord or videotape. Those works are created by shaping physical grooves or electromagnetic fields so that when they are moved past sensing devices, electric currents are created which, when amplified, perform physical work. Notwithstanding these apparent differences, all these works are writings in the constitutional sense and eligible for copyright if Congress so provides.

Congress

One of the most noticeable developments in American copyright law since 1790 has been its frequent expansion so that, after its most recent revision, it embraces “original works of authorship . . . [including] literary works, musical works, . . . dramatic works, . . . pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and sound recordings.”62 This is a significant change from the subject matter of the Act of 1790: “any map, chart, book or books now printed.”63 Over time, this short list has been lengthened by the following additions:

1802 Designs, engravings, and etchings64

1831 Musical compositions65

1856 Dramatic compositions66

1865 Photographs and negatives67

1870 Statuary and models68

1909 All the writings of an author69

1912 Motion pictures70

1972 Sound recordings71

1976 Original works of authorship72

It should be noted that neither this list nor the list in the 1976 Act is an attempt by Congress to delineate every specific work for which copyright is available. Rather, the 1909 and 1976 Acts were designed to reflect the breadth of copyright’s scope, while the specific emendations of other years were attempts to accommodate new technologies or to rectify restrictive judicial constructions. On no occasion in American history has copyright protection been withdrawn from a class of works for which it has been available.

Statutory Copyrightability of Programs

This expansion of American copyright unquestionably has already encompassed computer programs. In 1964, the Register of Copyrights announced that computer programs would be accepted for registration, provided that (1) they contained sufficient original authorship, (2) they had been published, and (3) copies submitted for registration were in human-readable form.73 The Register acknowledged that there might be two grounds for doubt about the registrability of programs: they might not be within the concept of “writings of an author” and machine-readable versions might not be “copies” of the program. Registration, therefore, was made contingent upon the presence of authorship and the deposit of human-readable copies. Because publication was a prerequisite for federal copyright under the 1909 Act and because few programs until recently have been mass-marketed, only some two thousand programs were registered under the statute.74 The new law, under which publication, registration, and direct human readability are not prerequisites to copyright, provides that federal copyright exists in any literary work from the moment it is fixed.75 That dramatic change in the law and the growing trend toward mass-marketed programs mean that copyright is likely to be increasingly important in protecting computer programs, particularly those of small entrepreneurs who create their works for individual consumers and who can neither afford nor properly use other forms of protection.76

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The Register’s 1964 determination has never been challenged. Although this hardly is dispositive, it was clearly the intent of Congress to include computer programs within the scope of copyrightable subject matter in the Act of 1976. Certain proponents of program copyrights have suggested amending the law to include programs in the list of copyrightable works.77 In discussing the expansive history of American copyright, the House and Senate, in identical language, state why that is unnecessary:

The history of copyright law has been one of gradual expansion in the types of works accorded protection, and the subject matter affected by this expansion has fallen into two general categories. In the first, scientific discoveries and technological developments have made possible new forms of creative expression that never existed before. In some of these cases the new expressive forms – electronic music, filmstrips, and computer programs, for example – could be regarded as an extension of copyrightable subject matter Congress had already intended to protect, and were thus considered copyrightable from the outset without the need of new legislation. In other cases, such as photographs, sound recordings, and motion pictures, statutory enactment was deemed necessary to give them full recognition as copyrightable works (emphasis added).78

Thus, Congress is on record regarding not merely the issue of program copyrightability but also the ease with which programs fit into copyright.

Unlike the cases of such apparent non-writings as photographs, sound recordings, and motion pictures, no changes in the law, according to Congress, were necessary to afford copyright protection to programs. As to the location of programs within the classes of copyrightable works set out in section 102 (a), the House Report makes it clear that Congress perceived programs to be “literary works”:

The term “literary works” does not connote any criterion of literary merit or qualitative value:

it includes catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer databases and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves (emphasis added).79

Thus, it is clear that those who wrote the Copyright Act of 1976 and those who have administered portions of the 1909 Act concur in the position that programs are copyrightable. Action by either Congress or the courts would be necessary to change this.80 The Commission, of course, has not felt itself bound by these prior legislative or administrative determinations of program copyrightability.

Next section: Copyright and Other Methods Compared

58 U.S. Const., Art. I, § 8, cl. 8.

59 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903);Kalem Co. v. Harper Bros., 222 U.S. 55 (1911); and Goldstein v. California, 412 U.S. 546 (1973).

60 1 Nimmer on Copyright § 8.1 (1976).

61 Reiss v. National Quotation Bureau, Inc., 276 Fed. 717, 719 (S.D.N.Y. 1921).

62 17 U.S.C. § 102(a).

63 1 Stat. 124.

64 2 Stat. 171.

65 4 Stat. 436.

66 11 Stat. 139.

67 13 Stat. 540.

68 16 Stat. 212.

69 35 Stat. 1076.

70 37 Stat. 488.

71 85 Stat. 391.

72 17 U.S.C. § 102(a).

73 Copyright Office Circular 31D (January 1965).

74 The number of programs in which copyright was asserted was likely much larger. Inasmuch as registration neither was nor is a prerequisite to copyright, there is no way ever to know the number of copyrighted programs in existence.

75 17 U.S.C. § 102(a).

76 For a discussion of these forms, see this chapter under Copyright and Other Methods Compared.

77 Transcript, CONTU Meeting No.6, p.13.

78 Senate Report, supra note 1, pp. 50-51; House Report, supra note 1, p. 51.

79 Supra note 1, p.54.

80 In deciding whether a class of works is copyrightable, courts have displayed a certain willingness to accept the practices of the Copyright Office. See Goldstein v. California, 412 U.S. 546, 568-69 (1973), in which the Supreme Court discussed the Register’s position on copyright in sound recordings; and Eltra v. Ringer, 194 U.S.P.Q. 198 (E.D. Va. 1976), aff’d 198 U.S.P.Q. 321 (4th Cir. 1978), in which copyright for typefaces was rejected in large part due to the Copyright Office practice.