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CONTU Commission

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Background Edit

The National Commission on New Technological Uses of Copyrighted Works (CONTU) was created by the Congress as part of the effort to revise U.S. copyright law.

Early in the congressional hearings on the copyright law revision it became apparent that problems raised by the use of the new technologies of photocopying and computers on the authorship, distribution, and use of copyrighted works were not dealt with by the then-pending revision bill. Because of the complexity of these problems, it was also clear that any adequate study of this problem would seriously delay the enactment of an urgently needed general copyright revision bill.

Establishment of Commission Edit

During the 93rd Congress, a bill was introduced which included, among other matters, a provision establishing the CONTU Commission. [1] This bill was enacted on December 31, 1974, as Pub. L. No. 93-573, which gave the Commission three years to study and compile data and make recommendations on legislation or procedures concerning:

(1) the reproduction and use of copyrighted works of authorship
(A) in conjunction with automatic systems capable of storing, processing, retrieving, and transferring information, and
(B) by various forms of machine reproduction, not including reproduction by or at the request of instructors for use in face-to-face teaching activities; and

(2) the creation of new works by the application or intervention of such automatic systems of machine reproduction.

Members of Commission Edit

On July 25, 1975, seven months after enactment of the bill, President Ford announced appointment of the following Commissioners:

From authors and other copyright owners:

John Hersey, President of the Authors League of America
Dan Lacy, Senior Vice President, McGraw Hill, Inc.
E. Gabriel Perle, Vice President-Law, Time, Inc.
Hershel B. Sarbin, President, Ziff-Davis Publishing Co.

From copyright users:

William S. Dix, Librarian Emeritus, Princeton University[2]
Arthur R. Miller, Professor of Law, Harvard Law School
Robert Wedgeworth, Executive Director, American Library Association
Alice E. Wilcox, Director, Minnesota Interlibrary Telecommunications Exchange

From the public:

George D. Cary, retired Register of Copyrights
Stanley H. Fuld, retired Chief Judge of the State of New York and the New York Court of Appeals
Rhoda H. Karpatkin, Executive Director, Consumers Union
Melville B. Nimmer, Professor of Law, UCLA Law School

The Librarian of Congress and the Register of Copyrights were designated ex officio members of the Commission; of these two only the Librarian had a vote in Commission matters.

Judge Fuld and Mr. Nimmer were designated Chairman and Vice Chairman of the Commission, respectively.

Ironically, there were no representatives from the computer or software industries on the Commission.

Purpose of Commission Edit

The Commission was created to provide the President and the Congress with recommendations concerning those changes in copyright law or procedure needed both to assure public access to copyrighted works used in conjunction with computer and machine duplication systems and to respect the rights of owners of copyright in such works, while considering the concerns of the general public and the consumer.

The Commission, as originally conceived, was designed primarily to assist in the resolution of issues relating to the impact of the computer on copyrighted works,[3] but the legislation added the photocopying issue to the Commission's mandate.

The Commission held a number of hearings and commissioned several studies.

During the Commission's life, the 1976 Copyright Act was enacted and became effective. In anticipation of the work of the Commission and of its Final Report, the drafters of the statute explicitly stated that it did not address or deal with computer issues.[4]

Final Report and Subseqent Events Edit

In 1978, the Commission issued its Final Report, in which it made certain recommendations for amendments to the 1976 Copyright Act.

CONTU’s recommendation that copyright protection be explicitly extended to computer programs was reflected in the 1980 amendments to the Copyright Act.

But the debate was not put to rest, particularly with regard to the appropriate scope of copyright protection for software. In its 1978 report, CONTU had recognized certain difficulties in applying copyright to software, especially in distinguishing between the copyrightable "expression" in a program and the processes or ideas the program implements, which are not copyrightable.[5]

CONTU assumed that most copyright infringements in the then-immediate future would be "simply copying," but recognized that technological advances would raise more difficult questions in determining the scope of copyright.[6]

Source Edit

ReferencesEdit

  1. S. 3976, 93rd Cong., 2d Sess. (1974), enacted as Pub. L. No. 93-573.
  2. Commissioner Dix died on February 22, 1978.
  3. S. 2216, 90th Cong., 1st Sess. (1967), in which the Commission was initially proposed, referred to the purpose of the Commission as being
    to study and compile data on the reproduction and use of copyrighted works of authorship (1) to automatic systems capable of storing, processing, retrieving, and transferring information, and (2) by various forms of machine reproduction.

    While subsection (2) referred to machine reproduction, the drafters of that bill had not envisioned the impact of modern reprography, and photocopying was not considered to be as significant or complex a problem as any of those created by the computer. The Report accompanying S. 2216 does mention photocopying as one of the problems for which a study commission was then being proposed, see S. Rep. No. 640, 90th Cong., 1st Sess. (1967), but testimony at hearings on bills for the general revision of the Copyright Act indicate that the computer, rather than the photocopying machine, was the main reason for the creation of a special study commission. See Hearings on S. 597, 90th Cong., 1st Sess., (1967) Parts I-IV.

  4. See 17 U.S.C. §117.
  5. Id. at 18-22.
  6. CONTU conciuded, however, that these questions should be answered on a case-by-case basis by the federal courts. Id. at 22-23.

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