we use more automated tools to produce the code, we can use more automated tools to divine what it came from.

Mr. KASTENMEIER. Thank you.

Mr. KAPOR. If I might, you were asking something about defining what an interface is, and a user interface.

Mr. KASTENMEIER. Sure.

Mr. KAPOR. Well, in any program there will be on the screen the depiction of various elements, of characters, lines, in some cases drawings, images, what are called icons-in other words, representative line drawings or pictures.

For instance, one common icon is a trash can, a little picture of a trash can on the screen, and when you want to remove some information from the system, you actually use a pointing device. You point to what you want to get rid of and you drag it into the trash can. You use that gesture to indicate that you wish to delete the file, or whatever the operation is. That is part, that trash can is part of the user interface of that program, and we say "user interface" because it is visible to the user.

Programs in general, when they are put together, tend to come in pieces like everything else. Pieces of programs can be made to talk to other pieces of programs, and an interface is just the specification of how one program in general communicates with another, whether that is visible to the user or not.

One of the major issues in the "look and feel" lawsuits, and I believe at stake in the European Economic Community issue, is the extent to which user interfaces should be protectible. Today there is protection that I believe derives from the audiovisual copyright sections, which says that if you make a screen and it has a certain kind of appearance, somebody else can't go and make another program that has exactly the same appearance.

I don't think that is being debated as much as to what extent can one make minor variations or produce similar works and be able to do that. In other words, if I changed the appearance of a trash can to a disposal, one of those things where you put stuff down into the sink, but it was otherwise the same, should that be allowed or not? here is concern on the part of existing stakeholders that they need broader protection for their particular user interfaces, not just for the literal dot-by-dot appearance but for, in essence, trying to protect the idea of the trash can.

I can't tell you the specifics of the wording of what is going on in Europe but, given what I have said before, I want to make it clear that I think the notion of protecting the idea of the user interface, anything other than the literal protection of the particular appearance is not consistent with forward progress and innovation. To the extent to which people are seeking, here or in Europe, to get more restrictive protection, I would be opposed to it.

Mr. KASTENMEIER. Thank you. Actually, I guess we could go on at some length with questions and explore other aspects of this, but I think it is time now to hear our other witnesses. I want to take this opportunity to thank both you, Dan Bricklin, and you, Mitch Kapor, for your very enlightening testimony here this morning. This is probably too brief a seminar to fully enable us to comprehend the subject before us, but nonetheless it is helpful and we appreciate your contributions.

Our second and really our last panel is a very large plate as far as expertise and as far as work from Government on the question. I would like to introduce our four Government witnesses.

First of all, we will hear from a friend, the Honorable Ralph Oman, Register of Copyrights. Under the Register's leadership, the Copyright Office has been of enormous assistance to the subcommittee on the subject of today's hearing, as well as many, many other issues. I want to publicly express thanks to the Register and his staff for their continuing support.

Second, we will hear from the Honorable Jeffrey Samuels, the Acting Commissioner of Patents and Trademarks, U.S. Department of Commerce. Mr. Samuels also serves as the Assistant Commissioner of Trademarks. He has ably administered the PTO during the past 6 months, while the office has waited the nomination and confirmation of a Commissioner.

I think I might also acknowledge the presence of Mr. Harry Manbeck in the audience. We wish Mr. Manbeck the very best in terms of an early confirmation. Mr. Manbeck has been well known to this committee over many, many years. He has worked in the field of legislation on patents, and we will be delighted to be working with him in the future.

The third witness will be Mr. Keith Fultz, Director of Planning and Reporting in the Resources, Community, and Economic Development Division of the General Accounting Office. At my request, the General Accounting Office has been working on a report about whether Government agencies are respecting the copyright law regarding computer software and whether our laws should be amended to better facilitate creativity and the transfer of technology.

Last but certainly not least, we will receive testimony from Mr. James Curlin, Manager of Communication and Information Technologies, Office of Technology Assessment. Mr. Curlin, a lawyer and a scientist, has directed the preparation of an OTA background paper on computer software and intellectual property. That is the title of it: "Computer Software and Intellectual Property."

Gentlemen, if there are no objections, I will recognize you in the order of your introduction. We will reserve questions until all of you have ended your oral presentations. We have, and we thank you for, your submissions, and you may proceed from them or you may summarize them as you think appropriate. In the case of Mr. Oman, typically we have a 66-page submission or statement, and we know that Ralph will summarize his statement, so we will call on you, Mr. Oman.

STATEMENT OF RALPH OMAN, REGISTER OF COPYRIGHTS,

LIBRARY OF CONGRESS

Mr. OMAN. Thank you very much, Mr. Chairman. I will in fact not read it word for word, but will try to summarize.

The written statement in fact discusses what I see as the emerging issues. Those issues are the protection of and the applicable infringement tests for computer screens, which have been mentioned today as the "look and feel" cases; the protection of structure, sequence, and organization, which was also discussed earlier this morning; the protectability of microcode; the interoperability of op

erating systems and interfaces; reverse engineering and decompilation; shareware; patent protection for processes using computer programs; the archival exception; protection of computer databases; and the various legislative proposals to expand the rights of copyright owners of computer programs to include a rental right.

These are all complex technical issues, as we have learned this morning. They are difficult for us in the Copyright Office to deal with, and I suspect that they are issues that the Congress would want to take a great deal of time in considering. I do suggest, however, if you have specific questions, Mr. Chairman, of a technical nature, it might be better for me to offer to respond to them in writing in the fullness of time, rather than-

Mr. KASTENMEIER. We would be pleased to do it that way. We respect the fact that offhand answers sometimes are inappropriate or difficult to questions in complex areas.

Mr. OMAN. Thank you very much, Mr. Chairman.

Important cases are in fact now pending before the courts that put in issue the protection of popular computer formats and user interfaces. I refer to the Apple litigation against Microsoft and Hewlett-Packard; the Lotus litigation over its 1-2-3 spreadsheet, and the Xerox Corp. suit against Apple Computer. The outcomes of these cases will likely have a significant impact on the future development of the software industry.

Earlier case law may offer little guidance as to how the courts will rule on these more difficult issues. Only a few of the early decisions dealt with issues of such economic importance, and many of the cases could have been decided on much narrower grounds. If the recent trial court decision in Intel v. NEC is any indication, the courts may wind up adopting a much narrower course, and that is to find that the microcode may be in fact copyrightable but that it generally would not be infringed.

In more general terms, copyright has worked well in the computer software area over the past few years. Most countries around the world protect computer software under a theory of pure copyright. Procedurally, the registration system in the United States is simple, and in many other countries registration is unnecessary. Judges seem to readily accord computer programs effective copyright protection.

Other legal doctrines have some drawbacks. Trade secrecy is dif ficult to maintain for mass-produced products and is subject to differences of State law. The patent law, though useful in certain limited situations, has some important limitations. I speak primarily of the novelty requirement that would disqualify most software products. Mr. Samuels can talk about this in some detail, and Mr. Kapor has already discussed what he saw as the chilling effect of inadvertent infringement.

While copyright is unquestionably the most popular form of software protection, it also appears true that controversial cases in software are on the increase in the United States. Some argue that this use of the copyright law to protect software was a bad decision. In fact, no one knows better than you, Mr. Chairman, that some copyright questions remain controversial for generations, and this has nothing to do with the inappropriateness of the copyright law to deal with the issue, so the fact that the courts are having some

difficulty struggling with these complex concepts should not suggest necessarily that copyright was a bad place to start.

Even so, Mr. Chairman, if people could copyright computer formats-and we had a brief discussion of that this morning-I see some public policy concerns which would be your concerns as well. Users of computer software spend substantial time and money learning to utilize popular computer formats. These users are understandably reluctant to switch to an entirely new format to use someone else's breakthrough program.

If you give the originators of these formats an absolute monopoly over use, then you could very easily foreclose the use or development of competing products using similar formats, even though they were written in different codes. Whether or not the originators of computer formats should get such a broad monopoly is hotly contested, and I suspect will be the subject of further controversy in the months and years ahead.

So far my comments have touched upon areas where some people argue that the courts are moving toward overbroad protection. On the other side of the coin, there are areas where software proprietors believe the current protection is inadequate.

One such area is the rental right. While controversy exists over the scope of protection the courts give computer programs, there is agreement that duplication for the purpose of avoiding purchase is generally wrong. I have concluded that the proprietors have made their case that computer program rental is a likely subterfuge for copying, and for that reason I suggest that Congress recognize the rental right.

Another area where some believe protection is inadequate is the legality of code-breaking devices to allow users to copy the software. The fifth circuit recently refused to find a company selling code-breaking software to be in violation of the copyright law. Many software proprietors believe code-breaking devices facilitate unlawful duplication of their products, and even the companies marketing the devices acknowledge that their products are sometimes used for that purpose. Even so, due to the fact that there is a legal, noninfringing use for these code-breaking devices-in other words, bonafide purchasers of the software can use them to make that archival copy that is permitted under the law-the courts are reluctant to strike them down as contributorily infringing.

While it may be impractical today to prohibit archival copying of computer programs, this might change with the advent of new media such as optical disks or compact disks. Optical disks, which are similar but larger than the compact audio disks, can hold very large amounts of data-650 million characters per disk-as compared to 360,000 characters per diskette. They are sealed in plastic and never come in contact with a read head, so they survive normal wear and tear for a much longer period of time.

Optical disk drives are now available for microcomputers, but they are expensive and they are much slower than the magnetic disk drives. But over the next 5 years it is likely that prices will drop, speeds will improve, and program suppliers will make more use of them. People may no longer need to make that archival copy that was required earlier and was the reason for that provision in the copyright law. But the large, currently installed basic systems

with magnetic media will drive the market for the foreseeable future.

There was a brief discussion this morning about the price-setting strategies of the creators. It is our view that the creators set the price of computer software with the likelihood of substantial copying in mind, and that if there is some way of foreclosing the copying option, prices could fall significantly. This would have a larger public benefit. If the price fell considerably, it also would obviate the need for an archival copy. A replacement copy, if it were much cheaper, could be purchased instead of making copies of the original for everyday use. Mr. Bricklin suggested that that might be the case in the future.

While I believe there is today little support for making major changes in the way copyright programs are treated under the copyright law, there may come a time when Congress will want to make basic adjustments in this area. If that time comes, the adjustments can be accomplished within the copyright law. Maybe-as you hinted, Mr. Chairman-the time is ripe for a new CONTU to look at these complex issues.

I can think of only two policy areas where, if Congress wanted to modify existing policy, it would do so by creating a sui generis law. One of these deals with the issue of originality. If Congress decides that in order to be eligible for protection, certain software products should achieve a higher standard of creativity than mere originality-in other words, something between today's copyright originality and patent novelty-then those software products should be transferred to a sui generis system.

An example of a standard between copyright and patent might be advancement over prior art. Such a standard would be higher than originality but lower than novelty and invention. Originality is such a fundamental underpinning of the copyright law that modification of the standard within the copyright system is not really possible without doing terrible damage to the overall structure of the law.

Of course, if Congress chose that route, it would need to make considerable changes on a number of policy issues. For example, should another programmer be allowed to create independently a similar program that does exactly the same thing, without infringing that patent right? This is a very serious question.

The second policy area that in my opinion might necessitate the creation of a sui generis law would be if you chose to enact a shorter term of protection for certain software products. It would set a very negative precedent to single out a certain category of work for a lower duration of protection and then leave the category within the copyright law. In practice, the term of protection has little significance in the world of computer programs, and, since the term is basically irrelevant, why create a sui generis regime simply to shorten the term of protection?

I will close, Mr. Chairman, with an observation on copyright history. In the past, the United States has undertaken comprehensive copyright law revision every 50 or 60 years, but we live in an era of accelerating change. Under the old timetable, the next copyright revision bill would be due sometime around the year 2030. În general, the 1976 Copyright Act gives the Congress an excellent frame