Copyright © 1983, by the Program on Information Resources Policy,

Harvard University

Source: Program on Information Resources Policy, Harvard University

Mr. KASTENMEIER. Thank you very much, Professor Compaine, for that presentation. It is very provocative and very useful.

I have several questions.

In terms of creativity, we quite often hear that lessening protection of intellectual property would be a disincentive for creativityand that the converse also would be true, that is, more protection for intellectual property would be a greater incentive for creativity. In light of what you have said, do you agree with that?

Mr. COMPAINE. I think the primary question is determining these days what is intellectual property. There is no doubt that the creators of intellectual property need to be compensated, and adequately compensated. If that is eroded, I feel confident that there would be far less incentive for people to create.

But the fundamental change is deciding what is the intellectual property. In the case of the computer algorithm, is the intellectual property something that a computer has created by putting in some information and then spitting out something that is readable or entertaining, or is the real intellectual property the computer program itself, the algorithm, that made the output possible?

Mr. KASTENMEIER. Is it one or the other, or could it be neither? Mr. COMPAINE. In the tradition of copyright, that is, protecting creativity-intellectual property-probably it is the computer algorithm we want to protect. That is what we want to provide reasonable compensation for, that's what is actually doing the creating. That is very different from what we are used to doing.

Mr. KASTENMEIER. Other than traditional copyright protection, are there other incentives that could be used successfully to increase creativity and perhaps access? In other words, in some respects is copyright outmoded as the device to reward economically? Mr. COMPAINE. Either outmoded or increasingly unenforceable, which makes it sort of moot. I am not a lawyer but one possibility might be increasing reliance on contracts that may provide greater upfront rewards to the first user of something. But I think very often there may have to be greater reliance on contracts between the creator and the purchaser, the original purchaser, such as a publisher who buys a computer program, or buys a method of doing something.

Mr. KASTENMEIER. We have heard some predictions of what to expect from new technology and you have commented on this, but to restate the proposition, do you think society would be better served if the law responds to changes as they occur, or tries to anticipate them?

Do you think we ought to try to anticipate change in this area? If so, how might that be done?

Mr. COMPAINE. I think to try to anticipate the change is futile. It is a real swamp. We should have already learned our lesson. Ten years ago we couldn't anticipate what is happening today. And these grow off each other. One thing changes and that creates a number of other changes that we couldn't anticipate.

My feeling is that any legislation will probably have to be very flexible and very general. We will probably have to rely on the courts to act as a tripwire. When you start seeing a bunch of certain types of cases in the courts, that may then be an indication that it is time for legislation.

But it you try to anticipate what is going to happen, I think you will be back here every 3 or 4 years having these hearings and asking, "What do we do now?" Every 5 years you will be out of date.

Mr. KASTENMEIER. Then your advice is to respond to these questions as they arise, but not wait too long?

Mr. COMPAINE. It is not easy-I am not trying to minimize the gravity of this. In general, I think, yes. You have to wait and respond to real problems, recognizing in the short term there may be some confusion and a few inequities. But I think that is probably the safer and in the long term, more socially beneficial way than trying to figure out what is going to happen in this area.

Mr. KASTENMEIER. I think I have used up my time. I thank you and I yield to the gentleman from California, Mr. Moorhead. Mr. MOORHEAD. Thank you.

Don't you have pretty much the same problems in determining computer materials that you have at the present time? If you have a book or a study that comes out that is copyrighted and you issue a book report or a synopsis of it, you really are subject to the copyright laws. You talk about using an abstract, a longer article on the computer, and copying that. Don't you basically have the same old problems? If it is just a review you probably are not in any trouble but if it is for all intents and purposes copying the original article in a summary form that you do have problems.

Mr. COMPAINE. The problem is if I write a review of something, or an abstract of something, presumably I could copyright it. But if you then publish the same review, word for word, someone would say you have violated my copyright. But if two publishers published the same word-for-word piece, because they both bought the same computer program which generated the review, how do you determine that one of those is protected and another is an unfair copy? They both used the same computer program.

It gets more complex. How do you copyright a data base, an electronic computer stored data base when that data base is perhaps being updated every minute, and it is constantly changing?

Mr. MOORHEAD. You talk in here about copying in the home. Now, you know there is legislation pending that would put an extra charge on the blank tape that is sold for a person's own use. If that bill is passed it would be legal to copy the materials that came in as long as you only used it for your own personal use and didn't sell it.

Mr. COMPAINE. I don't want to get involved in that specific piece. Mr. MOORHEAD. We are involved with the specifics and not just the abstract.

Mr. COMPAINE. That's right. That's why you are sitting there and I am here.

I think that it gets much more difficult when we talk about the computer side of things because you start putting things in digitized forms and it is almost uncontrollable for you to prevent me from copying a floppy disc, especially with hackers around who can break any code and sell them.

You can say, OK, we will put a 25-cent fee on every floppy disc that gets sold. The idea then is that you cannot enforce who controls the actual information itself. We are moving the control of in