television series on legal education from 1973 to 1974. He is co-author of the text, "Mass Communications Law."

Bryan L. Burns, panelist, is Director of Broadcasting in the Office of the Commissioner of Baseball in Washington, D.C. He worked with the Kansas City Royals in Public Relations and as Director of Marketing and Special Events. He holds a B.S. in communications.

Mel Harris, panelist, is President of Paramount Video, with world-wide responsibility for the programming, production, and distribution of pay TV, home video, and supplemental markets. He holds a position on the Board of Directors of several organizations, including USA Cable Network, CIC Video (for international programming), and UPI Pay TV, based in London. He came to Paramount in 1977; before that he was engaged in commercial broadcasting, both radio and television.

Gustave M. Hauser, panelist, Chairman and Chief Executive of Hauser Communications, has held various executive positions in the field of cable communications. He has served as a vice-president of General Telephone Electronics International, and of Western Union International. He was president of Warner Cable Corporation from 1973 to 1975 and chief executive officer of Warner Amex Cable Communications, Inc. Author of "A Guide to Doing Business in the European Common Market," he was director-at-large of the U.S. Overseas Private Investment Corporation from 1969 to 1977.

William Lilley III, panelist, is vice-president for Corporate Affairs of CBS, Inc. In 1981 he co-authored "New Technologies Affecting Broadcasting." Before coming to CBS, he worked as vice-president for government affairs of American Express Co., as minority staff director for the House Committee on the Budget, and as director of the Council on Wage and Price Stability. Before serving as deputy assistant secretary of HUD, he was professor of government at the University of Virginia and assistant professor of history at Yale.

Clyde Washburn, panelist, is Chief Scientist of Earth Terminals, Inc., a manufacturer of Satellite Telecommunication reception products which is based in Cincinatti Ohio. Serving his third term as an elected director of SPACE, the Society for Private and Commercial Earth Stations, he is also a Governor of the television viewing rights Superfund organized by SPACE. He has served as technical liaison to government agencies and satellite program suppliers. He also directed a project for the New York Bureau for Criminal Justices Services, the PASS project, organized to develop miniaturized personal security devices to enhance the personal security of the elderly and the disabled.

Alan Latman, moderator, is a professor of law at New York University and a member of Cowan, Liebowitz, and Latman. His text on copyright law, "Copyright for the Eighties," is a popular one; he has written many articles and chapters on copyright. Executive Director of the Copyright Society of the U.S.A. since 1976, he has also served as Director of the Walter J. Derenburg Program for Copyright and Trademark and as adviser to several UNESCO and WIPO councils. He has also served as a member of the Board of Governors of the New York Patent Law Association.

Thomas C. Brennan, panelist, is again Chairman of the Copyright Royalty Tribunal after serving as its first chairman at its inception in 1977 and since as a Commissioner. After earning the J.D. degree at Georgetown University, he served as Chief Counsel to the Subcommittee on Patents, Trademarks, and Copyright, U.S. Senate Committee on the Judiciary, during the time that new copyright legislation was developed. He is a member of the Board of Trustees of the Copyright Society, of the D.C. Bar Association; he serves as Chairman of the Committee on Patents in the ABA.

Harlan James Cleveland, panelist, is Director of the Hubert H. Humphrey Institute of Public Affairs at the University of Minnesota. The International flavor of his career as a public servant has encompassed several decades; he served as executive director of the economic section of the Allied Commission in Rome in 1944-46 and as director of the China Office in Shanghai in 1947-1948, and as U.S. Ambassador to NATO, 1965-1969. He has taught at Syracuse University, at Princeton, and at the LBJ School of Public Affairs at the University of Texas. Winner of numerous awards, including the Woodrow Wilson award at Princeton, he has also written several books on international affairs, management, and ethics.

Alexander Hoffman, panelist, is Senior Vice President at Doubleday & Co. After earning a B.A. in philosophy at Dartmouth and an MBA in marketing at the Amostuck School of Business Administration, he served with the Navy for some years. He has been Group Vice-President and a member of the Executive Committee of Doubleday since 1969. He was director of the Association of American Publishers in 1979 to 1980, and in 1979 was a member of the AAP delegation to the USSR and the

People's Republic of China. He is Chairman of the Board of Directors of the Direct Marketing Association and a member of the Board of the Copyright clearance Center and the International Freedom to Publish Committee.

John Kernochan, panelist, is a professor at Columbia University School of Law. He was executive director of the Council for Atomic Age Studies from 1956-1959 and a member of the President's Commission on the Status of Women from 19621963. He serves on the Board of Directors of Volunteer Lawyers for the Arts; he was chairman of the Board of Galaxy Music Corporation.

John C. Taylor III, panelist, is Chairman of the Carnegie Corporation and a member of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. He earned the LL.B. degree of Yale in 1950, where he was a member of Phi Beta Kappa and received the Order of the COIF. He is a member of the Association of the Bar of New York City and its committee on Copyright and Literary Property, and of the American Bar Association.

George Willoughby, panelist, is Vice-President for Corporate and Legal Affairs at KING Broadcasting Co., a major television and communications corporation in Seattle. A graduate of Stanford Law School, he practiced law in Seattle for 15 years before joining KING. He is a member of the Seattle King County Bar Association and other bar associations.

Frederick Pohl, speaker, has won numerous awards for his science fiction writings. He received the International Science fiction Achievement Award in 1966, 1967, 1968, and 1973, and the H.G. Wells award in 1975. He has also worked as an editor for publishing companies such as Popular Science, Galaxy Publishing Company, and Bantam Books. His books include "The Space Merchants," "The Case Against Tomorrow," Drunkard's Walk," and "Galaxy Reader." He has been a member of the Science Fiction Writers of America, the American Astro Nautical Society and the British Inter-Planetary Society. He has also served on the Council of the Authors Guild.

SUMMARY Of RapporteUR

(By Paul Goldstein, Professor of Law, Stanford Law School)

PROCEEDINGS OF CONGRESSIONAL COPYRIGHT AND TECHNOLOGY SYMPOSIUM, FEBRUARY 4-6, 1984, FORT LAUDERDALE, FL

In my role as Rapporteur, I have been asked to synthesize this weekend's proceedings, and to try to distill the important lessons learned. Although, obviously, I cannot reflect everything important that has been said here, I believe that I can, at the very least, describe three, central themes that have pervaded this Symposium and that have variously been touched on in the remarks of the speakers, in questions from the participants, and even in some of the technology exhibits. In the spirit of this symposium-which is to take a highly objective, policy-oriented look at copyright and the new technologies-I shall express these three themes not in terms of solutions, but rather in terms of options; not in terms of answers, but rather in terms of questions.

Haines Gaffner accurately capsulized the first two of these themes in his reference to the two polar concerns of policymakers in this area: software on the one hand, and transmission and access on the other.

Software. Should computer software, and allied subject matter, be protected by copyright? This simple question leads to some deeper issues: Do we need more investment in the production of computer software? If so, will copyright protection induce the correct level and direction of investment in software production? Will some other intellectual property be more efficient? More equitable? The importance of these questions is amplified by yesterday's demonstration of CDC's PLATO library-a library that, according to Jean Harris' presentation, consumed a one billion-dollar investment.

Transmission and access. The questions here concern rights and infringement, not only of new copyright subject matter, but also of more traditional copyright subject matter. To what extent should copyright subject matter be protected against new uses facilitated by computers and other new technologies? Note that it is characteristic of these uses that they will often be decentralized and undetectable. The problem created by such new uses were exemplified by at least two of yesterday's exhibits the demonstration of home satellite antenna reception, and of the disencryption of Visicorp's programs by a competitor's program, named-with true gallows humor-"Copywrite."

I.

Should copyright protect computer software? The discussions this weekend have reduced this question into three sets of subsidiary questions:

A. Are market conditions in this field such that producers need some form of protection, or subsidy, to stimulate the desired level of investment? Jean Harris' figure-one billion dollars to assemble the PLATO library of programs-certainly suggests some form of protection is needed to enable investors in the position of CDC to recoup their investment, or that some form of direct subsidy-from government or private foundations-is needed to serve in place of private investment. It is suggestive, certainly, but not necessarily conclusive.

B. If it is concluded that producers do need protection, should that protection take the form of property rights, or will technical self-help-program encryption, for example-be more cost-effective? Martin Greenberger noted last evening that WORDSTAR—one of the most widely used programs-achieved its commercial success without resort to encryption. Further, the Visicorp example suggests the limits to self-help through encryption. And, even if encryption is found necessary to protect investment, and even if it did work effectivley, we might ask whether we want to encourage the development of forces that will devote fine minds, and much valuable time, to the production, and destruction, of ever more elaborate encryption safeguards-minds that might more productively be applied to the development of new, positive programs instead.

C. If all of this suggests that legal protection is desirable what form should that legal protection take? Is copyright the appropriate vehicle for protecting software? Copyright law's traditional design has evolved over centuries to meet quite different needs, and may not be appropriate to this subject matter. Copyright might, for example, offer more protection than is needed in some respects, and less than is needed, in others. Register of Copyrights, David Ladd, addressing a closely analogous issue, observed yesterday that, assuming some kind of protection is desirable, it may be necessary to look outside copyright when dealing with data bases. Do the costs and benefits of (i) taking the copyright route net out to be more or less favorable than the cost and benefits of (ii) adapting some other, existing intellectual property system to the protection of software, or (iii) adopting some entirely new system specifically designed to protect software? Earlier today, Congressman Smith raised some questions that pointed in this direction-asking whether it might make sense to break copyright down into more discrete subject matter-oriented vehicles.

II.

Let me turn to the second theme touched on in these proceedings-transmission, access, consumers, and the administration of rights in both traditional and new copyright subject matter. What have we learned here?

One thing we've learned is a new word: downloading. From the examples given, though, I think we have also learned that this word is just a new way of describing an old and central quandary in copyright law: What uses of copyrighted works should be proscribed and what uses should be permitted? Although some of yesterday's speakers expressed the assumption that copyright law protects only against the production of a work in tangible copies, the truth is that copyright has, for well over a century now, also protected against a wide range of nontangible uses, such as often occur in downloading: performance, distribution, and more recently, under the 1976 Act, display of copyrighted works.

Although this might seem a minor quibble over words, I believe that it illustrates a larger problem in the legislative process: the risk of being distracted by new jargon and the risk of thinking that these new terms express new phenomena that need to be treated on new principles. The larger, connected danger is that of false analogies. As Judge Breyer noted earlier today, the analogy that grips Congress' attention will be the one that controls it.

Put in this frame, the question of liability for downloading does, however, helpfully exemplify the main challenge that the new technologies pose to the administration of copyright: should we extend rights against uses, facilitated by new technologies, that are widely dispersed, decentralized and frequently undetectable-not only downloading, but also library and office photocopying and home videotaping and audiotaping? How do we manage copyright in a world in which everyone is his or her own publisher or producer, truncating the traditional patterns of distribution?

In an ideal system of property rights, painted by some participants in this Symposium, everyone who uses a copyrighted work will pay something for their use-be it

an amount that reflects the information's cost to the producer, or its value to the user. Yet, from the very start, copyright law made no pretense that this ideal was attainable, efficiently or equitably. From the beginning it was assumed that many uses of copyrighted works would go uncompensated. The married woman who bought a copy of "Uncle Tom's Cabin" and, after reading it herself, shared it with her family and then with her friends, paid neither more nor less for this widelyused copy than the lonely bachelor who bought a copy and only read it himself.

What has changed is that the new technologies have dramatically escalated the degree to which copyright uses today may go undetected and uncompensated. Now that the new technologies have disabled market transactions in many contexts, the question arises whether these new uses should be free, or whether the basis should be laid for new forms of market transactions.

The question whether new rights should be created has quickly been overshadowed in our discussion by the question: How can the transaction costs of policing copyright uses be reduced to acceptable levels? Don Devine has referred to such relatively low-cost, and non-intrusive compensatory schemes as volume discounts to major centralized users. Another suggestion was dual pricing under which libraries and other centralized users would pay one-presumably higher-price while individual users paid a lower price for the same work. Another possibility, noted by Mel Harris, is simply self-policing among individual users.

Should new institutions be erected to police new rights? One caution, pointed out by more than one Congressman at this Symposium, is that we must be careful to avoid enacting laws that cannot be enforced, for the result will be disrespect for the law generally. A closely related point is that we must do what we can to educate the public as to the purposes of copyright law, generally.

If new laws and institutions should be created, should they be aimed at simulating market results or should they be aimed at some other object? Should they be run by government agencies, of the sort described by Chairman Brennan of the Copyright Royalty Tribunal, or by private organizations, like ASCAP, and BMI, as described by John Taylor and John Kernochan? Or should they folllw the pattern of the Copyright Clearance Center, as described by Alexander Hoffman? And, if these institutions are to operate in the private sector, should they be regulated by antitrust decree or otherwise?

There has been some suggestion, that the problems that the new technologies have created, by proliferating decentralized uses, should not be allowed to obscure the potential ways in which these very same technologies-as data storage, computation and retrieval-can in fact be employed to enable every user to pay for what he or she uses, by maintaining, recording and calculating each use, be it photocopying, or borrowing from a library-or downloading, for that matter. Needless to say, though, the concern for protection of individual privacy, as expressed by Mr. Berman, is implicated here.

Although the problem of decentralized uses has occupied center stage in the discussion of rights—in the Congress, in judicial decisions, in public policy debates, and in our own discussions, too-I should note another aspect of the administration of rights, that was considered in this Symposium and that was well underscored by the remarks of Joseph Lash, John Taylor and John Kernochan: What are the implications of these new, technologically facilitated uses for the returns paid directly to the authors, composers, and artists who make the copyright engine run? In what ways can new technologies be harnessed to acheive the more equitable distribution of royalties to the creators of copyrighted works? Parenthetically, Joseph Lash's example of his photocopying activities in Columbia University's Russian collection should remind us that the questions of use and production are closely connected in copyright: To produce knowledge requires using information created by others. This knoweldge, once produced-and copyrighted-will in turn become a source of information for still others in their production of knowledge, and so on, in what is hoped to be a never-ending chain.

III.

Finally, I would like to touch on a third theme that, although not expressly addressed in these proceedings, underlies all that has been said and, indeed, represents the very reason for our being here: How can the House and Senate Subcommittees charged with responsibility in this area, and how can the Congress generally, best position themselves to monitor the new technologies and to adjust copyright, and possibly other intellectual properties, to maintain the needed balance between incentives to the production and consumption of new information?

If any one point has been made clear these past two days, it is that technology is advancing at a pace far greater than the capabilities of the national legislature to keep up with it. Congressman Kastenmeier poignantly reminded us in his introductory remarks that Congress, in passing the 1976 Copyright Act, perceived the need to temporize on some emerging, already problematic, technological issues in order to achieve final resolution of issues that had long been pressing from remedy. I was struck in this connection by Haines Gaffner's bromide respecting the new technologies; "When you are working on the cutting edge of technology, the main thing is to stay behind the blade." That applies at least doubly for Congressional efforts: "When you are legislating on the cutting edge of technology, the all-important thing is to stay behind the blade."

I say, "it applied doubly," because there are variables other than technology and the legislative process that are implicated here. Let me just identify four.

A. One is the crucial issue of timing. Earlier today, Senator Mathias noted the ever-present danger that, even while Congress is deliberating on these important issues, changing economic realities may very well entrench the new technologies, thus concluding the issue being deliberated, and precluding a principled result. Don Devine pointed out that personal computers will experience their greater growth in the next decade-a far shorter horizon, no doubt, than Congress can possibly contemplate in dealing with that growth.

B. Second, is the problem that economists refer to as distributional effects, and that Dr. Spurlin more graphically described as the possibility that public policy decisions in matters involving the new technologies can very well widen the gap between the have and the have-nots-or, as Clyde Washburn indicated, between rural and urban users-in terms of access to vital information technologies.

C. Frederick Weingarten alluded to the great intellectual traditional of sharing ideas that characterized the efforts of early developers in this field, and that characterizes first-rate scientific research generally. Will existing or new intellectual property laws erect barricades to otherwise collegial communication? Care must be taken to attend to these possible effects which can only impede technological advance over the long run.

D. Fourth is the international setting. This naturally raises the question of the extent to which steps to encourage software production will affect our national balance of trade. Related to this is the question of piracy on an international scale as devloped by Harvey Zuckman's questions to the panel he moderated earlier today. There is also the question of our ongoing obligations under international copyright treaties. In this last connection, I might note that while it might seem efficient to break copyright into separate laws, each dealing with a discrete form of subject matter, this method, to the extent it produces substantive gaps between our law and the laws in force elsewhere in the international copyright community, may put us in default of our obligations under the Universal Copyright Convention and effectively bar us from ever joining the more rigorous Berne Convention.

What institutions can Congress employ and encourage to engage in the needed, systematic monitoring and oversight?

1. More meetings such as this would certainly be productive; but they are also incredibly taxing, and I don't know how frequently the members of Congress-occupied with so many other concerns-will find themselves able to pay that tax.

2. The hearing process is certainly another possibility. I would remind you that Macaulay's seminal statement on copyright, already alluded to by Judge Breyer and Professor Kernochan, was made on the floor of another great deliberative body-the House of Commons. The broad-ranging hearings conducted by Congressman Kastenmeier's Subcommittee this past July, on copyright and the new technologies, is certainly a more immediate example.

3. The governmental commission is another possibility. CONTU-the Commission on New Technological Uses of Copyrighted Works-created by the 1976 Act, provided some helpful guidance in the area. Senator Mathias' Bill, S. 2192, to establish a Commission to Study the Concept of the Public Lending Right also points in this direction.

4. Perhaps, too, there is a need to look outside Congress-to some independent facility, possibly university-based, funded through foundations or supported through some other means, to provide the Congress with systematic advice on these important issues of public policy.

I do not mean to suggest by any of this that the task of designing such an institution for oversight and reporting will be easy or quick. I only mean to suggest that, if I read the evidence presented at this weekend's proceedings correctly, the task is an important, and possibly a necessary, one.