9.3 The Copyright Evolution
The copyright evolution began in the 1960s with the concerns of how technology was affecting intellectual property law. New machines began appearing that enhanced the ability to violate copyrights. Photocopiers and VCRs have made it easier to copy television shows, movies and books. Computers, scanners and the Internet have made it just as easy to scan in a paper or article, make multiple copies of it and distribute the copies to many users on the Internet. All of this can be done in minutes and can create original looking or publisher quality copies.
Computers and computer software also joined the realm of copyrightable material and caused many questions and concerns. As the number of patents and copyright applications increased, questions arose about the extent of copyright protection on computers and computer programs. Does a patent on a computer also protect the operating program for the operating system; are programs in ROM included in the copyright protection; and is object code also protected? As these issues were ironed out in a court of law the questions developed deeper. Issues about the "protectability of structure, sequence and organization ("SSO") of a computer program" (Computers and Intellectual Property), protection for screens and user interfaces, and decompilation and reverse engineering arose.
The Copyright Office has been accepting registration for computer programs since 1964; however, it was not until the Computer Software Copyright Act of 1980 that programs were legally declared copyrightable works. There were 3 stipulations placed on program copyrights in 1964. First, the program had to contain sufficient original authorship, second, the program had to be published and third, the copies of the program submitted had to be human-readable. Between 1964 and 1976, only about 2000 programs were registered with the copyright office (Computers and Intellectual Property). This period is before the explosion of the personal computer and there was little concern for protection.
By 1974, Congress saw a need for investigation into the effects of technology on copyright issues. The National Commission on New Technological Uses of Copyright Works (CONTU) was created and given the task to study problems that were arising. CONTU presented their findings and recommendations in 1978. Their suggestion was for the enactment of an amendment that would clarify the scope of copyright protection on computer software. This recommendation resulted in the Computer Software Copyright Act of 1980. This amendment added the definition of a computer program and a new section 117 concerning an owner's exclusive rights of computer programs.
By 1986, the Office of Technology Assessment (OTA) conducted a study and released that the advancement of technology could not be handled by the current legislature and recommended sui generis legislation. The current laws, at that time, did not adequately handle certain situations therefore these cases had to handled as best they could. On December 1, 1990, the Computer Software and Rental Amendment Act of 1990 was enacted. This gave the owners and copyright holders of computer programs the control over the rental and lending of their work. The National Information Infrastructure and the Information Infrastructure Task Force were created in 1993 to continue studying the development of technology and the intellectual property system. The NII Copyright Protection Act of 1995 was the result of their efforts.
There are many court cases that occurred during what this chapter calls the copyright evolution. This section will highlight a few to better explain the events that were actually occurring. Since the WWW exploded in the past five years, the majority of these cases occur pre-WWW and demonstrate the effects of technological advancement.
Possibly the first computer related case was Telex Corp. v. International Business Machines, Corp. (IBM) (Computers and intellectual Property). In 1973, IBM Corp. charged Telex Corp. with infringing on their computer manuals. In 1979, Data Cash Systems v. JS & A Group, brought about the question of whether or not object code in ROM is protected given that it is not readable by humans. In a similar case in 1983, in Midway Mfg. Co. v. Strohon, the courts ruled that ROM was also protected because logically it was the same as code stored on tape or disk.
A case involving operating systems occured in 1983 between Apple Computer, Inc. and Franklin Computer Corp. Franklin used Apple's exact operating system code so that applications for that operating system could run on their machines. The courts ruled in favor of Apple because operating system code and application programs have no logical distinction.
Copyright © 1996 Kelly R. Hanood
Kelly Hanood <hanood@simon.cs.vt.edu>