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the courts, and policymakers have attempted to sort out what should or shouldn't be protected, and what is or is not protected has been

controversial.

Copyright and patent lawsuits continue to test and explore the

boundaries of the current laws. Many in industry and in the legal profession take the position that existing structures like copyright and/or patent are adequate to deal with software and that sui generis approaches 18 risk obsolescence and lack an established treaty structure providing international protection. 19 But others consider that modifications to existing structures, or development of sui generis protections, are preferable to forcing software to fit models more suitable to other types of works and discoveries. ¡at the same time that some are calling for major revisions in software protection, others are arguing that the current system isn't broken and doesn't need fixing.

Thus,

Protection of the logic underlying a program, as well as its structure and interfaces, raises complex issues. Some of these are currently the subject of well-publicized copyright lawsuits. At stake in these decisions is the extent to which copyright should be interpreted to give patent-like protection, albeit for a much longer period of time and without patent's high standards for innovation and originality.

18 Sui generis is a Latin phrase used to describe a law that is "of its
own kind or class."

19 For example, the Berne Convention provides reciprocal copyright
protection in 79 countries.

Software-patent suits are also ongoing. These, and the recent publicity given to patents for algorithms, have stimulated debate over whether software and algorithmic inventions should be patentable at all, or whether they are different enough from other areas of technology that special limitations should apply. The long-term question of whether patent (or patent-like) protection for software and/or algorithms is socially desirable is separate from the related question of how well current United States Patent and Trademark Office (PTO) procedures are working. For the near term, questions of how to improve the state of the prior art and patent searches may merit attention.

Questions for Consideration

In its oversight of policies addressing the protection of computer software and related technologies, Congress may find questions such as these helpful.

Questions About Definitions

Terms like "interface" and "algorithm" do not have uniform meanings for the computer and legal professions. What terminology can we develop or adopt to talk about and analyze software issues, so that the legal and software professions, and policymakers, can meet on common ground?

In what ways are functional works like computer software and algorithms different from other types of works and inventions? what ways are they similar?

Questions About Industry Structure and the Nature of Innovation

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Does it make sense to talk about "software" or the "software industry" in aggregate? Or, are some parts of the industry, or some types of software, different enough that they should be considered separately?

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Where and how has innovation in software occurred? Who created new software techniques? Commercialized or disseminated them? Is this changing, or can we assume that "what worked before will work now"?

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Does the current statutory scheme of copyright and patent
protection for software adequately stimulate creativity?

Does the current scheme create sufficient economic incentives for investment in software research and development? For commercialization of R&D results?

Is the current scheme sufficient to maintain U.S. leadership in software in the world market?

Do concepts like "lead time" have a drastically different meaning for software or algorithms than for other types of works and inventions? What does this imply for the desirable duration of protection?

Questions About Protection and Enforcement

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What aspects of software and/or algorithms are protectable?

How feasible will enforcement of protections for software and/or algorithms be? Will courts be able to draw the distinctions they

need?

Where will the burden of proof be in enforcing rights? Will they fall equitably on individuals and large and small firms?

Does "fair use" need to be interpreted differently for software than for other types of copyrighted works? Do we need special rules for uses of software in education and research?

Mr. KASTENMEIER. Does the gentleman from California have an opening statement?

Mr. MOORHEAD. Yes, Mr. Chairman. Thank you.

Today we will hear from and about the computer industry, an industry that supplies over 70 percent of the world's market for software. I think much of the success enjoyed by the computer industry is a direct result of Congress' decision in 1980 to protect computer programs under the Copyright Act.

Supported by this regime of protection, new and in many cases small, innovative computer companies have not only been launched but have flourished in what is a very competitive field. And yet, even as the computer industry has in many respects prospered, there have been calls for reform of our intellectual property laws to more adequately protect computer software. Many advocates of such reform point to the ongoing litigation over various legal questions regarding the protection of computer software, and argue that Congress should intervene to resolve these outstanding issues. This situation reminds me of a meeting I had with former Chief Justice Burger, who told how, when he was pressed from all quarters to decide a case because it represented a conflict among the circuits, more often than not, his response was to simply make the notation "LIS" on the briefs-that is, "Let It Simmer"-the point here being that litigation is often necessary in order to refine existing legal principles as they relate to different factual situations.

In my opinion, Congress should proceed cautiously in this area and act only when there is a strong and compelling need, supported by a clear consensus, to do so.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. I thank my colleague, and I will remember his advice.

I would like to recognize my colleague from Oklahoma, Mr. Synar.

Mr. SYNAR. Thank you, Mr. Chairman.

This morning's oversight hearing is appreciated and, without a doubt, a timely topic. I want to thank you for providing the committee with a varied group of individuals and testimony on this important matter.

As you pointed out in your opening statement, changes do come fast and furious in the computer industry. While I would agree that Congress should never be precipitous in its actions, there are times, I think, that it is important that Congress respond quickly to the technological changes taking place around us. Certain issues, such as the intricacies of computer workings and the concepts of intellectual property, may be difficult and technically complex. I think many of us who have dealt with these issues realize that. But Congress still has a responsibility to deal with these matters and make hard decisions as to the statutory treatment of these and other more mundane issues.

Since our society and that of our trading partners and competitors in the world is increasingly dependent on the workings of computers and computer software, it would be in our best interests to address this matter head on and to determine the correct action to be taken. I believe that the United States should be in the lead on these issues and set the world standard.

In reviewing the testimony that's to be given today, I would have to agree with the statement of Leo Raskind, that the "new technology may take its place within the copyright regime, yet receive special adjustments as are dictated by the structure of that industry and the public interest and its protection." I do not agree, however, that Congress should take a wait and see attitude. Fast and furious changes may well overtake us if we take that attitude.

I and other colleagues, including Mr. Moorhead and Mr. Fish, have introduced H.R. 2740, which is meant to deal with some of these technological changes, and I do hope today's hearing will lead us to a proper review of that legislation.

Again, I want to thank you, Mr. Chairman, for these timely and important hearings, and I look forward to the testimony this morning.

Mr. KASTENMEIER. I thank my colleague.

I would now like to introduce our leadoff witness, Anne Wells Branscomb. I would caution all witnesses that while there are, indeed, some giants here in terms of comprehending computer problems, one should not assume that the committee or the wider area of national interests are as well informed as one would otherwise hope. This was true 13 years ago when we gave a commission the responsibility of determining the copyrightability of software, and I think it's still true today.

Our first witness, Anne Wells Branscomb, is an attorney specializing in communications, computer and copyright law, and is an adjunct professor of international law at the Fletcher School of Law and Diplomacy, and a research associate of the Harvard University program on information resources policy.

Ms. Branscomb has previously served as chairman of the Communications Law Division of the American Bar Association and is currently a member of the National Conference of Lawyers and Scientists. She is today, however, testifying in her individual capacity.

We have a copy of your written statement, Ms. Branscomb, and you may proceed as you wish.

STATEMENT OF ANNE WELLS BRANSCOMB, ESQ., RESEARCH ASSOCIATE, PROGRAM ON INFORMATION RESOURCES POLICY, HARVARD UNIVERSITY, AND ADJUNCT PROFESSOR OF INTERNATIONAL LAW, FLETCHER SCHOOL OF LAW AND DIPLOMACY, TUFTS UNIVERSITY

Ms. BRANSCOMB. Chairman Kastenmeier and other distinguished members of the committee, I want to thank you for the opportunity to appear this morning and to give you my personal views concerning the importance of computer software in the U.S. economy and also to offer some views about changes that might be made in the intellectual property laws to enhance its productivity, both in the domestic and global market.

I think it's probably not important for me to dwell on the significance of computer software in the economy because you, as chairman, in your opening statement, have made a very eloquent statement of its importance, and there are other witnesses today who

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