Executive Summary

Matters for
Consideration by the
Congress

Agency Comments

applications because businesses could protect their investment and fed-
eral researchers would have an incentive to work with businesses in
developing and documenting the software. These authorities also
(1) would provide federal computer programmers with opportunities for
career, financial, and intellectual rewards similar to those provided to
federal inventors and (2) could enhance public access to some federal
software because the software might not otherwise be sufficiently
developed and documented for general dissemination. Several agency
and laboratory officials stated that with copyright authority they could
better control the quality and distribution of software related to their
mission of improving public health and safety.

However, in the view of some federal laboratory managers and researchers, copyrighting and licensing authorities would (1) distract researchers from the laboratory's basic research mission and (2) interfere with informal exchanges among federal and university scientists. In addition, Information Industry Association officials are concerned that agencies might use authority to copyright software to either restrict access or give favored access to federal data bases.

To effectively transfer and use federal computer software while accommodating concerns about access to federal data bases and federal laboratories' basic research mission, it may be appropriate to provide copyright and licensing authorities for federal software with wider commercial applications that need further investment to be effectively transferred. This change could be accomplished by amending (1) the copyright law to allow federal agencies to copyright and grant nonexclusive, partially exclusive, or exclusive licenses to software on a case-bycase basis if such protection would stimulate its effective transfer and use or (2) the Federal Technology Transfer Act to authorize agencies to copyright and grant licenses to federal software under a cooperative R&D agreement. Under either option, consideration should be given to extending the Federal Technology Transfer Act's royalty-sharing authority to include federal software. If the copyright law is amended, consideration should be given to instituting procedures like those required for granting patent licenses to ensure fairness.

Chapter 1

Introduction

Intellectual Property
Protection

Copyright and Related
Protection

During the past 10 years, the Congress has passed legislation and the President has issued an executive order to stimulate the transfer of technology from federal laboratories to U.S. businesses and other organizations. The legislation has encouraged businesses to commercialize federal technology by allowing agencies to (1) grant nonexclusive, partially exclusive, or exclusive licenses to patents for federal inventions and (2) collaborate on research and development (R&D). However, the legislation has not addressed federal computer software, which businesses typically protect by copyrighting.

The federal government provides protection to individuals and organiza-
tions for intellectual property primarily through copyrights, patents,
and trademarks.' Alternatively, a business can protect technology by
treating it as a proprietary trade secret. The purpose of copyrights and
patents is to promote the progress of science and useful arts by provid-
ing to authors and inventors for limited times the exclusive right to their
respective writings and discoveries.

The Copyright Office, in the Library of Congress, administers the copyright registration program under Title 17 of the United States Code. A copyright protects original works of authorship fixed in any tangible medium of expression, including literary works, musical works, dramatic works, pantomimes and choreographic works, motion pictures and other audiovisual works, and sound recordings. The author of an original work may, but need not, register the work with the Copyright Office to claim copyright protection. Subject to the limitations in 17 us.c. 107 through 118, the copyright owner has the exclusive right to do or authorize certain activities, including (1) reproducing the copyrighted work, (2) preparing derivative works based upon the copyrighted work, and (3) distributing copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, rental, lease, or lending.

Chapter 1
Introduction

Patent and Trademark
Protection

Effective January 1978, copyright protection for the work of a single, known author is for the author's life plus 50 years. For a work made for hire, including one prepared by an employee within the scope of employment, copyright protection is 75 years from first publication or 100 years from the work's creation, whichever expires first. For a joint work prepared by two or more authors who did not work for hire, copyright protection is for the life of the last surviving author plus 50 years.

The Copyright Office also is responsible for registering claims of protection for mask works under the Semiconductor Chip Protection Act of 1984 (17 U.S.c. 901 et seq.). Mask works are patterns used in fabricating integrated circuits on semiconductor chips. In establishing separate protection for mask works, the act provided that an owner, subject to certain limitations, has the exclusive right to perform or authorize certain activities, including (1) reproducing the mask work by optical, electronic, or any other means and (2) importing or distributing a semiconductor chip product in which the mask work is embodied. A mask work is protected for 10 years after registration or its first commercial exploitation, whichever occurs first. Copyright Office regulations require a mask work owner to deposit identifying material upon registration but allow the owner to block out material it considers a trade secret, provided it is less than 50 percent of the total.

The Patent and Trademark Office (PTO) in the Department of Commerce administers the patent and trademark programs under Title 35 of the United States Code. PTO will issue a patent to any person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof. To determine whether an invention meets these criteria, PTO examines a patent application's claims and "prior art" (prior discoveries) to determine whether the invention is novel, nonobvious, and has utility. This examination takes about 18 months on average, including in many cases an initial rejection of the application to which the applicant may respond by refiling. In granting a patent, the government gives the patent holder the right to exclude others from making, using, or selling the invention for a period of 17 years, subject to the payment of maintenance fees. In return, PTO publishes the specifications and accompanying drawings of the patent upon issuance.