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Mr. KASTENMEIER. One clarification: I think Mr. Samuels did testify that the administration believes the present combination of patent, copyright, and trade secret protection, et cetera, is consistent. You have indicated that across the board in terms of intellectual property the administration is satisfied with the present law. Mr. SAMUELS. Yes, we are, Mr. Chairman. I should add that, referring to the software rental bill which is now pending before Congress, that the administration has sent a letter to the Senate in support of that legislation.

Mr. KASTENMEIER. So this is not quite correct, your statement? Mr. SAMUELS. Well, in answering Mr. Fish's question with respect to the patent laws, we foresee no need for any changes in the patent laws. With respect to the copyright laws, we have supported and do support the software rental provision.

Mr. KASTENMEIER. One further point: I appreciate the fact that you quoted, Mr. Samuels, from the letter that Mr. Moorhead and I had sent to Ambassador Hills. You didn't mention the last paragraph on fair use, which would allow reverse engineering and decompilation under certain circumstances. Do you disagree with that part of the letter?

Mr. SAMUELS. No, Mr. Chairman, we don't. We do understand and do agree that under certain circumstances, primarily where reverse engineering or decompilation is for noncommercial purposes, that the fair use doctrine may be applied in that circumstance, but the reality is that when decompilation does occur, in most cases it is for commercial purposes, and as you know, commercial use of a copyrighted work is presumptively unfair.

Mr. KASTENMEIER. Thank you.

We will now continue, if we may, with Mr. Keith O. Fultz, the Director of Planning and Reporting in the Resources Community and Economic Development Division of the General Accounting Office. Mr. Fultz, we are delighted to have you here.

STATEMENT OF KEITH O. FULTZ, DIRECTOR OF PLANNING AND REPORTING, RESOURCES COMMUNITY AND ECONOMIC DEVELOPMENT DIVISION, GENERAL ACCOUNTING OFFICE

Mr. FULTZ. Thank you very much.

At your request, GAO examined whether Federal agencies are complying with the prohibition on copyrighting Government works. We also tried to determine the extent to which the copyright law has constrained the transfer of Federal software, and also we discussed some ideas and pros and cons of allowing Federal agencies to copyright computer software.

In summary, we found no evidence that Federal agencies are copyrighting works of the Government. Government officials, however, believe that about 10 percent of the software they develop at their laboratories has commercial applications. They did tell us that the transfer of these applications has been constrained because the Government cannot copyright and exclusively license it. Further, the laboratories are having limited success in encouraging business collaboration on developing software. I will briefly discuss each of these issues, beginning with compliance with the prohibition on copyrighting.

As I stated, we could find no evidence that the agencies have improperly copyrighted software developed by Federal workers. In a few cases, however, software distribution centers have used nonexclusive agreements to restrict foreign access or customers' rights to further disseminate software. Laboratory and business cooperative R&D agreements in this area are limited primarily because of concern about the protection that would result if they were to invest in developing and marketing jointly developed software.

I will now turn to the issue of constraints in transferring information. According to the officials from several Federal agencies, making software generally available allows for what they consider to be adequate dissemination of most of the software that they develop. This information is basically prepared for specific scientific applications and essentially has little application in the commercial world.

However, the officials did tell us that they believe the copyright prohibition has constrained the transfer and use of about 10 percent of the software with potential commercial application. This includes artificial intelligence material that could assist doctors in diagnosing diseases, or perhaps farmers in making decisions about irrigating, fertilizing, and spraying their crops.

The officials told us that they cannot determine the extent to which their inability to copyright is a problem, because in essence the businesses know that they cannot obtain a copyright. Thus, they do not seek to license the software or enter into cooperative agreements.

In order to put this into perspective, I would like to mention that the NIH has signed about 130 cooperative R&D agreements. It is just now beginning to negotiate its first software agreement. Also, of over 140 agreements that the Agricultural Research Service has signed or is in the process of negotiating, none focus on software. Again, we think that this shows how hard it is to carry this technology into the commercial world.

I will now briefly discuss the pros and cons of amending the copyright law.

The agency officials that we talked with agree that Federal software with commercial applications should be copyrighted and exclusively licensed. They also believe that the Federal researchers working on this software should share any income that would be derived. With these changes incorporated, they believe that the businesses could protect their investments and that the Federal researchers would have an incentive to actually work with the businesses in further developing the software. Several officials also noted that the copyright authority would further their agencies' missions to improve public health and safety, because they believe it would put them in a better position to control the quality and distribution of the software.

However, some Federal laboratory managers and researchers oppose copyrighting and licensing. They feel it would detract the researchers from the laboratory's basic research mission and perhaps interfere with the informal exchanges among Federal and university scientists that occur on a frequent basis. They also feel it would interfere with the existing policy of publicly disseminating technical information.

In addition, we met with the Information Industry Association, and they oppose copyrighting Federal computer software because, in their opinion, the agencies might use this authority to either restrict access or give favored access, if you will, to Federal scientific and demographic data bases such as those at the NIH Library of Medicine or at the U.S. Census Bureau.

In conclusion, Mr. Chairman, transferring Federal software with commercial application—and I stress "with commercial application"-could be achieved by amending the copyright law to provide copyright and exclusive licensing authority. We believe this could be accomplished through a couple of options. One would involve amending the copyright law to allow Federal agencies to copyright computer software on a case-by-case basis. The second involves amending the Federal Technology Transfer Act, which would authorize Federal agencies to copyright computer software under a cooperative R&D agreement. Now if needed, GAO would provide suggested legislative language for either of these options.

This concludes my summary, and I would be glad to respond to questions that you might have after the other witnesses are complete.

Mr. KASTENMEIER. Thank you, Mr. Fultz. We appreciate that report. It is a very interesting new report for us.

[The prepared statement of Mr. Fultz follows:]

PREPARED STAtement of KeitTH O. FULTZ, DIRECTOR, PLANNING and Reporting, ReSOURCES COMMUNITY AND ECONOMIC DEVELOPMENT DIVISION, GENERAL ACCOUNTING OFFICE

Mr. Chairman and Members of the Subcommittee:

I am pleased to present our views on the copyright law's prohibition on copyrighting the federal government's computer software. My statement today is based on our ongoing work for this Subcommittee. At your request, we are examining (1) federal agencies' efforts to comply with the prohibition on copyrighting works of the government, (2) the extent to which copyright law has constrained the transfer of federal software, and (3) the pros and cons of amending copyright law to allow federal agencies to copyright computer software. This review follows up on our March 1988 report, in which we identified copyright law as a constraint to the transfer of federal computer software to U.S. businesses.1

I would like to summarize the results of our most recent work, which we will include in a report to this Subcommittee soon. We found no evidence that federal agencies are copyrighting works of the federal government. However, at five federal agencies, 2 senior officials believe their efforts to transfer certain computer software with potential commercial applications to U.S. businesses have been significantly constrained because the government cannot copyright and exclusively license federal software. They estimate that this software could represent as much as 10 percent of all the software developed at their laboratories. In particular, federal laboratories are having only limited success in encouraging U.S. businesses to collaborate on developing computer software, through cooperative R&D agreements, because of uncertainties over the

1Technology Transfer: Constraints Perceived by Federal Laboratory and Agency Officials (GAO/RCED-88-116BR, Mar. 4, 1988).

2These agencies--the Department of Agriculture, the Department of Commerce, the Department of Defense, the National Aeronautics and Space Administration, and the National Institutes of Health--funded about 88 percent of the research and development performed at all government-operated laboratories in fiscal year 1989.

extent of protection they can offer businesses for jointly developed works.

According to agency officials and executives from businesses that have considered commercializing federal software, having the authority to copyright and grant exclusive licenses would stimulate the transfer of federal software with commercial applications by providing businesses with protection for their investments. Royalty-sharing authority would also, in their view, provide federal researchers with an incentive to further develop and document the software. However, officials of the Information Industry Association, which represents the business information community, expressed concern that providing copyright and licensing authority for software could, among other things, limit public access to federal scientific and demographic databases that software provides.

BACKGROUND

Copyrights protect literary and artistic expression by giving the author, for a limited period of time, the exclusive right, among other things, to reproduce and sell copies of the copyrighted work and prepare derivative works. But under 17 U.S.C. 105, the U.S. government is prohibited from copyrighting any of its works, including technical publications, computer software, and databases. The law's legislative history states that this prohibition is intended to place all works of the federal government in the public domain. Most federal computer software is generated by federal agencies' laboratories as part of their research mission. This software is primarily distributed through the National Technical Information Service (NTIS) and other software distribution centers operated by the Department of Energy (DOE) and the National Aeronautics and Space Administration (NASA).

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