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
During the 93rd Congress, a bill was introduced which included, among other matters, a provision establishing the CONTU Commission. The bill was enacted on December 31, 1974. It 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 —
(2) the creation of new works by the application or intervention of such automatic systems of machine reproduction.
Members of Commission
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
- 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
Judge Fuld and Mr. Nimmer were designated Chairman and Vice Chairman of the Commission, respectively.
Purpose of Commission
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, 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.
Final Report and Subseqent Events
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.
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.
- S. 3976, 93rd Cong., 2d Sess. (1974).
- Pub. L. No. 93-573, §201, 88 Stat. 1873, 1873-74 (1974); see also CONTU Final Report, at 9.
- Commissioner Dix died on February 22, 1978.
- 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.
- See 17 U.S.C. §117.
- Id. at 18-22.
- CONTU conciuded, however, that these questions should be answered on a case-by-case basis by the federal courts. Id. at 22-23.