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∂AIL Mr. Michael Keplinger↓Assistant Executive Director and Senior Attorney
↓National Commission on New Technological Uses of Copyrighted Works
↓Washington, D.C. 20558∞

Dear Mr. Keplinger:

	Here are the comments you requested.  I am sorry not to have
more time to devote to it.

Comments on %2Ownership of Computer Created Works%1 by The Staff, dated
December 16, 1977

	The considerations raised in the document all seem cogent
to me.  It further seems to me that the issue of "creativity" is
a false when it comes to the copyright law benefiting the public.
The object of the law should be to encourage people to produce
works and make them available to the public by assuring them
of a property right in the results of their efforts.

	Suppose, for example, that someone inverts the telephone
directory to provide a file indexed by telephone numbers, and that
other people want to use this file to find out who has a given
number.  Suppose that the original telephone file is public information
and that the computer program that inverts the file is public and
that the only contribution of person who inverts the file is
arranging to operate the program every month, paying for the
computer time on someone else's computer, paying for the storage
of the inverted file on disk, and advertising the availability of
the inverted file.  (We leave aside any question of whether it
is good that anyone should be able to find out who has a telephone
number, because with some more thought a different example that
didn't raise privacy issues could be developed).  In my opinion,
the person or company that created the inverted file should
be protected against unauthorized copying, since they have
a right to the fruits of their enterprise, investment and labor,
and to encourage the provision of services to the public.

	On the other hand, it seems to me that no creativity
went into the work on the assumption that the original file
was public and the program was public too.  Therefore, creativity
should not be required for protection.

	If this view cannot be taken, then there is bound to
be an uneasy borderline between creatively produced and other
documents and data bases.  It will encourage attempts to add
a spurious creativity to a document.  For example, someone
might redesign the the display format of the inverted telephone
file in order to inject an otherwise unnecessary element of
creativity that will give the file copyright protection.  There
will then be litigation over whether a feature of a data base
was spurious or genuinely creative.

	If creativity must be taken into account, then the question
arises of whether a machine can be creative.  This raises unsolved
and controversial issues of artificial intelligence.  My opinion
as one expert in this field, is that machines can in principle be
creative.  However, this depends on getting a good definition of
creativity, and artificial intelligence doesn't have one yet.
It seems to me that even if machines can be creative, there is
no convincing claim that any present machine or program is
significantly creative.

Comment on Hersey's %2Additional views on computer software%1.

	The argument that software is different from other
creations, because it is to be read by a computer doesn't especially
impress me.  However, if the Congress is willing to take the trouble
 to write a special
Act protecting  software along the lines suggested by John Hersey,
they could undoubtedly do a better job than including it under
copyright.  Borderline cases between software and literature don't
immediately occur to me, but they might exist.

Comment on the %2Data base subcommittee report%1.

	The only consideration uncovered in the report is that
some data bases may be mainly used by computer programs rather
than by human interaction.  What information these computer programs
may extract and how it may be subsequently used is hard to predict.
Therefore, it is important to concentrate law on general principles,
such as letting people control their property.  An attempt to
define fair use that doesn't take into account or explicitly
exclude use by other computer programs may produce unexpected
anomalies.

	I am sorry I don't have time to consider these issues
more thoroughly, but I am relieved to have the impression that
you are doing a good job.

.sgn