lavishly in rubles for everything they publish and deposit the money in a Soviet bank to the account of the author so that when he came to the Soviet Union he could draw it out and spend it. That's what they said they did. In practice, it was a little different. When I first visited the U.S.S.R. in 1971, I came with bright hope because I had had a couple of books published in the Soviet Union, one of them in more than one language, and it had been told to me by a Russian friend that I could live elegantly for a long time in Moscow by spending my accumulated rubles. Unfortunately, my friend had neglected to tell me that it was fairy gold. It evaporates before your eyes. When I asked for my rubles, the publisher said apologetically that there was a law that said that if they weren't claimed within three years they reverted back to the state, and I had missed the deadline. Of course, since then, they've signed up with the rest of the world, and now they pay in dollars and sign contracts which they are obligated to carry out. (Which may be the reason why since then none of my works have appeared in the U.S.S.R.) All of which suggests to me that the passage of the Copyright Law or treaty is not enough to protect the writers' interests by itself, but it certainly is the very first step. My colleague and fellow Authors Guild council member, Joe Lash, said many of the things this afternoon that I had planned to say myself. I support all he said and enjoyed his talk a great deal, even though it cost me four pages out of this onethough that may not be a bad thing. So let me end by sharing with you just three specific points that I would like to mention. First, the economic interests of authors and publishers-electronic and otherwise are not always the same. Where they differ, it is usually the author who needs statutory protection more than the publisher. Second, the author has also a moral right in his work. Judge Breyer pointed out that the courts seem to concern themselves more with economics that with morality-but not at all with the moral rights. Neither do our statutes, although in some countries, in particular France, there is a statute on the books which specifically enforces that the author's right to see his work published in a way he wants it or not at all. I wish we had such legislation here. Third, the need for copyright in the work of authors as against, say, the copyrighting of software, is not the same. Last night's speaker said, quite truly, that for much software a three-year term is plenty, because long before that the software is outmoded anyway. But I think it important to realize that this is not true of works of creation. George Orwell's novel,"1984", is only about a dozen years from going out of copyright in the second term, but it is at the present time-or was last week-number one on the bestseller lists. So when it comes time to amend the copyright law, I hope writers' rights will not accidentally be lost in the commendable effort to safeguard the rights of others. Of course, it might be that all this would take place in the proper forum without any nudging from any writer or any other person, just by the natural workings of the legislative process. I might believe that-right after I first start believing in ESP, and flying saucers, and dowsing, and the Tooth Fairy. Thank you very much. [Applause.] Mr. KEPLINGER. Thank you very much, ladies and gentlemen. For those of you who are going to tour the IBM facility, the bus will be leading at 8:30 sharp in front of the hotel, and proceeding directly from that tour to the airport. So, thank you very much for your participation this evening. Thanks to Mr. Pohl, thank you very much. [Whereupon, proceedings were concluded.] APPENDIX II To: Technology Assessment Board. CONGRESS OF the United STATES, Subject: Proposed Assessment of Intellectual Property Rights in An Age of Electronics and Information. OTA was first asked about the subject of intellectual property by a member of the staff of the House Committee on the Judiciary, during the first week of July, 1983. He called to find out about the work OTA was doing in the area of patents and copyrights, and asked if he might meet with members of the CIT program to share thoughts and ideas. Rick Weingarten met with the staffer in early July. A week later, OTA was asked to testify before that Committee's Subcommittee on Courts, Civil Liberties, and the Administration of Justice on the subject of the "New Information Technology and Copyrights." OTA testified before the Subcommittee on July 21, 1983. A few days after the hearing, the Committee Staff asked if OTA could do a broader analysis in the form of an assessment of the impact of information technologies on intellectual property protection. A formal letter of request from the House Committee on the Judiciary followed on August 8, 1983. Independent of the House request, OTA recieived a letter from Senator Charles McC. Mathias, Jr., Senate Committee on the Judiciary, requesting that OTA do a broad study of the relationship between the new technologies for recording and transmitting intellectual property and the copyright laws. In September and October, OTA staff met with staff from both Committees to duscuss their requests. These meetings led to an OTA workshop on information policy held on December 15 and 16, 1984. The workship was designed to help OTA and Committee staff better understand the underlying issues. This proposal is the result of that workshop. Staff members from both the House and Senate Committees on the Judiciary have seen early drafts of OTA's proposal for an assessment on intellectual property. They made a few suggestions, which have been incorporated into the proposal. Attachments. OTA PROJECT PROPOSAL ON INTELLECTUAL Property Rights in an Age of Background: The protection of intellectual property was provided for in the American Constitution to foster the development of science and the useful arts, and to encourage the dissemination of information and knowledge to the public. The tension that exists between the aim of temporarily restricting information and the goal of widely diffusing it, while always inherent in the law, has significantly increased in recent years as a result of the rapid development and deployment of new information and communications technologies and of the enhanced value of information. This tension has given rise to a number of public policy issues, which this study will seek to address. Description. This assessment will identify and analyze trends in the development of the new information technologies to determine those areas where there might be gaps in the laws and practices of intellectual property; it will examine how their widespread deployment and use might alter the value of information and thus affect the future creation, production, distribution use of, and access to information and thus affect the future creation, production, distribution, use of, and access to information and knowledge based products; and it will identify and evaluate policy strategies-legal, technological, economic, and social-for addressing intellectual property issues in an age of electronics. Examples of some of the issue areas tht might be included for analysis are: (1) the legal and institutional issues resulting from rapid technological change; (2) the technological issues that result from the impact that intellectual property law might have on technology, (3) socio-political issues arising from the public/private aspects of information; (4) the economic issues arising from the enhanced value of information and information services; (5) the international issues resulting from the increased flow and value of information across national boundaries; and (6) the ethical issues arising from the conflict between public laws and private practices. The report should be especially useful to Congress as its seeks to adapt existing intellectual property law, and to create new laws, to provide for the new technologies. Requestors: Congressmen Peter W. Rodino, Jr., Robert W. Kastenmeier, Hamilton Fish, and Carlos Moorhead, House Committee on the Judiciary, by the letter dated August 8, 1983; and Senator Charles McC. Mathias, Jr., Senate Committee on the Judiciary, by letter dated July 26, 1983. Schedule: Begin April 1984; Draft Report, June 1985; Final Draft September 1985. Coordination with other Agencies: There is no direct overlap with any studies being conducted by any sister agency. Contacts and coordination will be maintained, however, where there is a shared interest. NSF has an on-going working group on intellectual property at which OTA is represented. Study Plan: See pp. 15ff of the proposal. Budget. FY84-$271K; FY85—287K; FY86-68K; Total-$620K. U.S. HOUSE OF REPRESENTATIVES, Hon. MORRIS UDALL, COMMITTEE ON THE JUDICIARY, Chairman, Technology Assessment Board, Office of Technology Assessment, Office of the Director, U.S. Congress, Washington, DC. DEAR MR. CHAIRMAN: We would like to request that the Office of Technology Assessment conduct a study on the subject of "copyright and technological change". Included in this study would be an examination of general concepts as well as an assessment of how these concepts relate to specific legislative proposals in such areas as home taping, record and audio rental, cable television, and copyright protection for semi-conductor chips and computer software. The Office of Technology Assessment, however, need not limit itself to areas where legislation is pending. Thought can be given to new technologies such as satellite communications, optical discs and computerized publishing. It would be extremely helpful if OTA could fashion-with assistance from Commmittee staff-questions to be asked for an appropriate study. General questions could include the following: the role of copyright law in reallocating or protecting societal resources; the need to create executive or legislative branch entities to handle such reallocations or protections; the role of the judicial branch (or other dispute resolution bodies or techniques) in enforcing or determining legal rights; and the line that should be drawn between competing demands of consumer and proprietor. The Committee on the Judiciary has jurisdiction over issues relating to substantive copyright law as well as the Federal judicial branch, the Copyright Royalty Tribunal and the Copyright Office of the Library of Congress. The Subcommittee on Courts, Civil Liberties and the Administration of Justice already has conducted hearings on the general subject of copyright and new technology. The hearings, which commenced on July 20-21, 1983, will continue through the second session of the 98th Congress. Thank you for your assistance in this important matter. Sincerely, PETER W. RODINO, JR. Chairman, Committee on the Judiciary. ROBERT W. Kastenmeier, Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice. HAMILTON FISH, Ranking Minority Member, Committee on the Judiciary. CARLOS MOORHEAD, Ranking Minority Member, Subcommittee on Courts, Civil Liberties and the Administration of Justice. U.S. SENATE, COMMITTEE ON THE JUDICIARY, Dr. JOHN H. GIBBONS, Office of Technology Assessment, Washington, DC. DEAR JACK: I would like to ask the Office of Technology Assessment to do a broad study of the relationship of new technologies for recording and transmitting intellectual property to the copyright laws. My Subcommittee on Patents, Copyrights and Trademarks is working in several areas to update the copyright laws in view of technological developments, and I think such a study would be useful to our efforts. If you wish to discuss the scope of the study in more detail, please call Ralph Oman of my staff at 224-5617. With best wishes, CHARLES MCC. MATHIAS, Jr., U.S. Senator. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS OTA PROJECT PROPOSAL ON INTELLECTUAL PROPERTY RIGHTS IN AN ACE OF ELECTRONICS AND INFORMATION Congressional interest The Assessment was requested by Congressmen Peter W. Rodino. Jr., Robert W. Kastenmeier, Hamilton Fish, and Carlos Moorhead, House Committee on the Judiciary, by letter dated August 8, 1983; and by Senator Charles McC Mathias, Jr., Senate Committee on the Jurdiciary, by letter dated July 26, 1983. This study should be expecially useful to the Congress over the next few years as it seeks to adapt existing intellectual property law, and to create new laws, to address the issues that arise from the development and use of the new information and communications technologies. Already a number of bills have been introduced into Congress that relate to this area. Included among them, for example, are H.R. 1028/S.1201, which would give limited copyright protection to the chip process; H.R. 2985, which would grant copyright protection to "an industrial design"; H.R. 1227/ S.31, which would give owners control over the rental market for films and other audio visual materials. The Subcommittees of the Senate and House Committee on the Judiciary that have jurisdiction over copyright and patents have held hearings on a wide range of these issues over the past year, and together the two full Committees sponsored a special seminar in Florida devoted to understanding the new technology. The House Subcommittee on Courts, Civil Liberties, and the Administration of Justice plans to hold additional hearings on the subject of intellectual property sometime this year. Background Recent scientific adances in such technologies as microelectronics, photonics, and satellites have led to rapid developments in computers, communications, and other information technologies and have given rise to a vast array of new products and services, changing the way that information and communications are being used and offered in the market place. These developments are having a major effect on how intellectual property is viewed by society, the mechanisms by which it is protected, and its value, both as a market good and as a public resource. The protection of some forms of intellectual property through the grant of exclusive ownership rights for a limited period of time was provided for in Section 8, Article 1 of the American Constitution. Its purpose was two-fold: to foster the development of science and the useful arts, and to encourage the dissemination of information and knowledge to the public. The tension that exist between the aim of temporarily restricting information and the goal of widely diffusing it, while always inherent in the law, has significantly increased in recent years as a result of the rapid development and deployment of new information technologies and of the enhanced value that, today, is being placed on information. This increased tension has given rise to a number of public policy issues which this study will seek to analyze and address. Intellectual property was traditionally protected by keeping it secret, or by limiting access to it. Today, however, many of the societal practices and legal remedies that have been used to restrict or to control the flow of information are being un dermined, as the widespread deployment of the new technologies allows individuals greater opportunities to selectively access, store, manipulate, alter, and reproduce information in a wide variety of forms. Historical developments in the area of computers illustrate this point. Computer software, for example, required little legal protection in the days when computer software was created and designed exclusively for a particular computer and when computers were so large and expensive that only the government or a large corporation could afford to own one. Moreover, because many of these technologies require that information be handled in an electronic form, many of the operations performed with or on them can be carried out covertly, and they are thus less subject than they might have been in the past to monitoring or control. For example, the personal computer, the VCR, teletext and videotex, the audio cassette, on-line data bases and soon even the inhome xerox machine all provide easy access for covert copying. The unprecedented speed with which these technologies are being advanced together with the intense competition in the marketplace that is accompanying their development is making it increasingly difficult for the laws of intellectual property to remain relevant and useful. Thus, as illustrated in the recent cases of Apple Computer, Inc. v. Franklin Computer Corporation and Sony Corporation of America v. Universal City Studios, Inc., there are already technological gaps in the 1976 copyright law and its 1980 amendments, even though the law itself was specifically designed to take into account the emergence of the new electronic technologies.1 With respect to the Apple case, for example, the law failed to address the important questions of whether copyright law applies to operating code that is readable, for the most part, only by machine, or to information that is embedded in hardware. In the Sony case, it failed to anticipate the rapid growth of the home market for video cassette recorders and how this widespread use of VCRs might effect the intellectual property rights of the film industry.2 Pressures to reevaluate the question of how new information and communications technologies might affect and be affected by intellectual property law have intensified greatly in the last few years, as the value attributed to information and to information related products and services has increased. One measure of this trend is the growing importance of software in relation to hardware in information systems. Large computer installations, for example, have long since passed the crossover point where investments in software exceed those in hardware. Some estimates place the ratio at four dollars of investment in software for every dollar invested in hardware. As a result, the commercial market for computer software is growing rapidly. One market research group predicts, for example, that computer software sales in the United States will triple from $4.5 to $13.5 billion by 1986. While owners of small softwares are not yet to the point of such major proportional investments in software, the demand for personal computer software is expected to rise faster than the demand for hardware. Because of the rapid and tumultuous changes that are now taking place in the area of information technologies, premature efforts to update intellectual property law may restrict access to information, stifle innovation, and dampen competition in the industry. On the other hand, failure to act soon may entail severe economic penalties, both domestically and internationally, and may contribute to what seems to be a waning of public support for and acceptance of intellectual property protection. It has been suggested, for example, that the public might be more reluctant to photocopy today had the Congress acted before 1976 to revise the copyright law. Given the growing importance of information, the stakes in the outcome of today's debate about intellectual property-for the producers, the providers, and the users of information products and services as well as for society as a whole-are unusually high. It is for this reason that the courts are increasingly looking to the Congress to address the the issues to which the technological gaps in existing intellectual property law give rise. 1 Many of the changes in the 1976 copyright law as it was amended in 1980 are based on the recommendations of the National Commission on New Technological Copyrighted Work, a group that was established in 1974 by the Congress to specifically address a number of computer and photocopy related issues. The Commission's recommendations were presented to the Congress in a "Final Report of CONTU," Library of Congress, July 31, 1978. 2 Some people believe that the issues in the Apple v. Franklin case remain unresolved, since after a 20-month litigation battle, Franklin Computer Corporation has decided not to argue its case before the Supreme Court and to pay Apple Computer Corporation $2.5 million in damages for allegedly plagiarizing copyrighted software. The Sony Case was resolved by the recent Šupreme Court decision in which, by a margin of 5-4, the Court ruled that owners of video recorders did not violate copyright law by taping television programs for their own use. |