The second image I suggest was that the investment per capita is going to be severalfold higher. It is moving to center place in our domestic economy.

A third kind of anchor point that one would get out of these deliberations is that the technology is intrinsically democratizing. The democratizing aspects of the technology ought to be encouraged, not thwarted, by any kind of constraints you put on it. This is the sense of the intellectual information commons.

Out of the deliberations and creating images of the future, you can develop more of these anchor point concepts. They would inform your legislation.

Mr. KASTENMEIER. Thank you for that guidance. We very deeply appreciate your testimony here today.

Mr. COATES. Thanks for having me.

Mr. KASTENMEIER. Our last witness today is Prof. David Lange. Professor Lange has taught at Duke University School of Law since 1971. His area of expertise is intellectual property, communications, and entertainment law.

He brings with him a diverse experience. Prior to becoming a teacher of law he was a partner in a motion picture production firm, a practicing lawyer, and a public servant. He was in fact chief counsel to the mass media task force, National Commission on Causes and Prevention of Violence.

Professor, it is a pleasure to greet you and we are most pleased to hear from you.

TESTIMONY OF DAVID LANGE, PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW

Mr. LANGE. Thank you, Mr. Chairman.

I welcome this opportunity. I can assure you that I appear before you suitably chastened by the parting remarks of my two 14-yearold sons who told me as I was leaving, that if this committee hoped to elicit expert testimony, then surely in my case some mistake must have been made.

I told them I thought the question was essentially existential and that, in any case, I wanted them to spend the day cleaning up the yard.

Meanwhile, I do have some remarks to bring you and, unlike Mr. Coates, I am sufficiently rooted in the past-and take copyright and intellectual property law to be sufficiently well establishedthat what I really propose, Mr. Chairman, is just to comment on how I think the existing system might approach the problems posed by new technology and to suggest some of the presumptions and challenges to new technology that I think you and the members of your subcommittee might suitably bring to people who want to extend copyright interests or who want to have new copyright for some new technology.

In short, I don't propose any kind of grand renovation of copyright. Having just finished 15 years in that effort yourself not long ago, I am sure you would not welcome that kind of undertaking and, indeed, I must say, I don't think it is necessary.

The copyright law as it now exists and has existed since January of 1978 is suitable in the main for the kinds of copyright interests that it protects.

I don't mean to say that I think it is easy always to apply copyright principles. Certainly, as you know, copyright principles are very difficult to decide in particular cases.

But the law doesn't work badly and there is no particular reason, in my judgment, why the law ought to be radically revised or why, in effect, we ought to have to reinvent the wheel in order to decide whether or not to do something about particular technologies.

My view is that in approaching the subject matter of new technology, we need to keep in mind the bargain that we strike when we allow a copyright proprietor to have a copyright interest. The bargain is that in the long term, in exchange for that temporary protection, we expect to have whatever it is that is the subject matter of that creative expression passed into the public domain where it then becomes part of the yeasty materials from which we invent new works.

It is the public domain that I think is most seriously threatened when new technology and new ideas for protection in new technology are raised. There is always the prospect of striking a bad bargain.

But I do not mean to sound any kind of dramatic note or to suggest the death knell of what Mr. Coates calls the intellectual commons, which I think is the same as I imagine when I use the term the public domain.

I think that if we are careful and if we are willing to allow new ideas to be brought on against the background of what I have called in my testimony a civil common procedure, we can allow the questions of new interests to be raised and argued out in the security of knowing that we won't allow these interests to be proliferated too widely or too advantageously unless the necessary burdens of proof have been met and the public domain provided for.

What I have in mind I have proposed in my testimony, which I hope you will receive for the record without my having to read it. Mr. KASTENMEIER. Without objection, of course.

Mr. LANGE. What I have proposed in this testimony is a series of inquiries that I think proponents of protection for new technology ought to have to meet and I begin to list those on page 6 of my prepared statement.

To begin with, Mr. Chairman, it seems to me that if new technology is to have the protection of copyright in some fashion, it ought to first meet a threshold test. The first requirement is that the expression or the embodiment of that technology, ought to sufficiently closely resemble copyright interests that we already have provided for in the law. We should not too greatly stretch the existing constitutional dimensions of copyright and or too sharply break with the kinds of copyright protections that we have in the 1976 general revision.

The analogy that I have in mind is this: It seems to me that if someone wants to call a garment a vest, he ought to have to produce something that doesn't have sleeves. If you are going to wear a garment that has sleeves, then I think you ought to call it

something else. It is no longer a vest, I think, in the meaningful sense of the term.

I think that if a new technology is introduced and brought to this subcommittee for protection, then I would suggest that this is the first thing that ought to be inquired. Does this new technology essentially resemble what we have accustomed ourselves to thinking of as the subject matter of copyright and does it result in the kinds of protected expressions that copyright has already proven itself reasonably capable of dealing with? Professor Nimmer, for example, raised this question in the context of micro chips in 1978, in the new technology report.

If the answer to this threshold question is yes, then it seems to me that the proponent ought to go ahead and meet some additional burdens of proof.

If the answer is no, it does not necessarily mean, of course, that no protection ought to be extended to the new interest. It only means that if protection is to come, it probably ought not be copyright.

It may be that a patent is appropriate; it may be that something really new is appropriate for protection. But I don't think that we are required infinitely to stretch the boundaries of copyright law in order to accommodate interests and technology which are simply not within the fair province of copyright as we can sensibly deal with that subject.

Now, if I begin to sound as though I am hidebound and rigid and incapable of responding to anything new, I assure you I don't mean to. I am quite capable of accepting new media of expression; and perfectly willing to entertain the idea of new subject matters of copyright. But I think it is fair to raise the threshold question that Professor Nimmer did.

So the initial question is whether the new technology is fairly within the framework of what we are accustomed to thinking of as copyright? And if it is, then we can proceed to some secondary questions.

The secondary questions could be framed in any number of ways. I have suggested five questions in my prepared statement that I think the proponent of a new interest ought to have to meet.

The first, it seems to me, is this: Is the subject matter newly to be protected by copyright susceptible to a definition that will allow us to come to some sensible common understanding of it?

Is the expression that is to be protected capable of a definition that will allow people to understand where the boundaries of that copyright lie and what the dimensions of the copyright are?

A second question that I think that proponent ought to meet is whether the new protected interests can be set off against that part of the public domain which remains unaffected? In other words, can we complete the job of defining the new interests so that we both understand what it is that is to be newly protected and, also, what it is that is to remain in the province of the public domain? Those seem to me to be two questions that every proponent of new or extended protection ought to have to answer. And I think there ought to be something amounting to a burden of proof here, that is, if these two requirements cannot be met, if the definitions cannot be made satisfactory, then it seems to me that the presump

tion ought to be that the interest is not entitled to new copyright protection.

The third question that I propose in my testimony is that the proponent ought to undertake what amounts to a competitive analysis of the costs and benefits of new protection. For example, consider the "first sale" doctrine and whether or not it ought to be revised in the case of motion picture or audio cassettes.

It may well be that it ought to be changed, but if so, then it seems to me that the proponents of the change ought to be required to show not only why they should have the benefit of the change but also why the members of the existing tape rental industry ought to bear the adverse consequences.

In short, I think that in our rush to entertain the idea of new technology and new interests, we ought not necessarily allow those interests which have sprung up in reliance on rights in the public domain to be too easily thrust aside. And, again, I think the presumption ought to be against rather than in favor of extending a new kind of protection.

Fourth, I have suggested that any proponent of new interests ought to be able to show clearly how that interest ultimately will enrich or enhance the public domain. If the transaction in copyright is one in which we presuppose that ultimately the public domain will be enhanced, then I suggest it is fair that every proponent of a new or extended interest in copyright ought to show how that interest ultimately will benefit the public domain.

Generally speaking, that burden will be easy to discharge if you can show that some kind of new creativity is involved. But if we are dealing with something more nearly in the nature of derivative rights or if we are dealing with a new medium of expression or an existing kind of expression not importing much new in the nature of creativity, then I think from the perspective of the public domain, new protection is more difficult to justify.

Finally, I have suggested a burden that ought to be borne by a proponent of new legislation which in a sense echoes the threshold tests that I have already proposed.

In general, a proponent of a new interest ought to have to show that the interest can fit harmoniously into the existing scheme of copyright without radical revision or excision of existing provisions. If a new interest can be protected in copyright only by balkanizing the existing field of law, then, while it may well be that new and separate protection ought to be recognized, it does not follow that that protection ought to be called copyright or that it ought to take its place within the provisions sections generally covered by title 17.

My suggestion in this testimony, then, in short, is that proponents of new interests or extended interests ought to be encouraged to come forward but I don't think that it ought to be the obligation of Congress or this subcommittee to have to defend against a refusal to extend legislation I don't think this subcommittee ought to have to apologize if it decides to say no. In effect, I think the burden ought to be on the proponents of the new interests, or the extended interests, to show why those interests ought to be newly protected.

If they can meet these requirements, then the copyright law can sensibly be revised. If not, then I suggest to you, Mr. Chairman, that the copyright law cannot sensibly be revised. And while it may well be that you will nonetheless wish to revise it, I think then you will have to find a new basis for the revision.

I think at that point we begin to test the constitutional dimensions of the law of statutory copyright and I do think at that point it is fair to put on the brakes before we extend these provisions of law.

I have summarized the contents of my testimony, Mr. Chairman, in the hope that I can save you and the other members of the committee some time in the hearing today. Meanwhile, I would be very glad to respond to questions if you have some on what I have said or on something else that has been said in earlier testimony. [The statement of Mr. Lange follows:]