Kapor, Mitchell D., chairman and chief executive officer, ON Technology, Lemberg, Thomas M., Esq., vice president and general counsel, Lotus Develop- Moorhead, Hon. Carlos J., a Representative in Congress from the State of Raskind, Leo, J., professor of law, University of Minnesota: Prepared Reiling, Ronald T., chairman, Proprietary Rights Committee, Computer and Samuels, Jeffrey M., Acting Commissioner, Patent and Trademark Office, Samuelson, Pamela, visiting professor of law, School of Law, Emory Univer- 241 202 217 3 259 103 163 328 89 Wessell, Milton R., adjunct professor of law, Georgetown University Law 59 APPENDIXES Appendix 1.-Additional statements.... 431 Professor Gideon Frieder, dean, School of Computer and Information 431 Software Publishers Association 435 Richard Stallman, president, League for Programming Freedom, Appendix 2.-Additional materials submitted by witnesses "Nurturing Creativity in a Competitive Global Economy: Intellectual "Computer Software: Protecting the Crown Jewels of the Information Milton R. Wessel: "Alternative Dispute Resolution for the Socioscientific 482 539 562 Pamela Samuelson: "Protecting User Interfacers Through Copyright: The 577 Leo J. Raskind: "The Continuing Process of Refining and Adapting Copyright Principles," 31 German Yearbook of International Law 478509 (1989).. 584 Ralph Oman: Letter from Richard E. Glasgow, Assistant General Counsel, Copyright Office, to Hon. Robert W. Kastenmeier (May 1, 1987), with attachments 616 Jeffrey M. Samuels: Letter from Hon. Robert W. Kastenmeier to Hon. Donald Quigg, 651 Letter from Hon. Jeffrey M. Samuels, Acting Commissioner of 653 Keith O. Fultz: Letter from Hon. Robert W. Kastenmeier to Hon. Charles A. 676 678 James W. Curlin: Letter from Hon. Jack Brooks, chairman, Committee on the Judici- Appendix 3.-Further printed materials... 729 731 732 World Intellectual Property Organization, "Model Provisions on the 732 Kay, Alan, "Computer Software," 251 Scientific American 53-59 (Sept. 1984). 758 Kahin, Brian, "The Software Patent Crisis," Technology Review 53-58 (April 1990) Stern, Richard H., Keynote Address: "How To Protect New Technology and Creations," International Symposium on Legal Protection of Computer Software (October 1987).... Stern, Richard H., "Appropriate and Inappropriate Legal Protection of Stern, Richard H., "Appropriate and Inappropriate Legal Protection of Stern, Richard H., "Appropriate and Inappropriate Legal Protection of Stern, Richard H., "Appropriate and Inappropriate Legal Protection of Keplinger, "Computer Software-Its Nature and Its Protection," 30 765 771 774 779 786 793 799 805 Hoffman, Gary, Jon Grossman, Patrick Keane, and Jodi Westby, "Protection for Computer Software: An International Overview: Part 1," 11 European Intellectual Property Rev. 337-44 (1988). 835 Hoffman, Gary, Jon Grossman, Patrick Keane, and Jodi Westby, "Protection for Computer Software: An International Overview: Part 2," 1 European Intellectual Property Rev. 7-13 (1989)... 843 Kolata, Gina, "Mathematicians Are Troubled by Claims on Their Rec- 850 851 Weigner, Kathleen K., and John Heins, "Can Las Vegas Sue Atlantic 853 Andrews, Edmund L., "Equations Patented; Some See a Danger," N.Y. 859 Brown, "Comment: The Incompatibility of Copyright and Computer 862 907 Newell, "Response: The Models are Broken, the Models are Broken!" 47 Kitagawa, Zentaro, "Legal Protection of Computer Programs in Japan- Appendix 4.-Further letters and correspondence. 920 933 Beulick, John S., Clifton Park, NY: Letter to Hon. Robert W. 933 Urbanik, Thomas, Madison, WI: Letter to Hon. Robert W. Kastenmeier (September 27, 1989), with attachments....... 935 Ostfeld, David M., Esq., Houston, TX: Letter to Hon. Robert W. Manbeck, Hon. Harry F., Jr., Assistant Secretary of Commerce, and 944 Letter from Hon. Robert W. Kastenmeier (April 24, 1990) Oman, Hon. Ralph, Register of Copyrights, Library of Congress: 949 950 952 953 Gadbaw, Michael, Esq., Dewey, Ballantine, Bushby, Palmer & Wood, Letter from Hon. Robert W. Kastenmeier (April 24, 1990) 955 956 Dunlap, F. Thomas, Jr., vice president, general counsel, and secretary, Intel Corp., Santa Clara, CA: Letter to Hon. Robert W. Kastenmeier (May 15, 1990).... 958 COMPUTERS AND INTELLECTUAL PROPERTY WEDNESDAY, NOVEMBER 8, 1989 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE ADMINISTRATION OF JUSTICE, The subcommittee met, pursuant to notice, at 9:45 a.m., in room B-352, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Robert W. Kastenmeier, William J. Hughes, Mike Synar, Carlos J. Moorhead, Howard Coble, D. French Slaughter, Jr., and F. James Sensenbrenner, Jr. Also present: Michael J. Remington, chief counsel; Judith Krivit, clerk; and Joseph V. Wolfe, minority counsel. OPENING STATEMENT OF CHAIRMAN KASTENMEIER Mr. KASTENMEIER. The committee will come to order. This morning the subcommittee is conducting an oversight hearing on computers and intellectual property. Computers are commonplace in government, our homes and offices, and business enterprises. Computers perform a vast variety of tasks, ranging from telephone switchboards to air traffic control, from microwave ovens to automatic teller machines. It seems like only yesterday that a study commission created by this subcommittee the National Commission on New Technological Uses of Copyright [CONTU]-reported to the Congress on how the then relatively new technology of computer software should be incorporated in this Nation's intellectual property system. In 1979, after a 2-year study, CONTU recommended that the copyright law be amended to include computer programs, to the extent that they are original, in the list of protectible subject matter. They also concluded that any legislation enacted as a result of these recommendations should be subjected to periodic review to determine its adequacy in the light of continuing technological change. In 1980, Congress adopted the first part of CONTU's recommendation and expanded copyright law to include computer software as a protectible subject matter. In 1984, however, we declined to "shoehorn" the law any further, rejecting proposals to add semiconductor mask works to the list of works protectible under copyright. Instead, we passed legislation crafted by this subcommittee that created a freestanding or "sui generis" protection of 10 year's duration for mask works. During the past decade, our record of engaging in review of the 1980 Software Act has been somewhat spotty. To my knowledge, however, the hearing today is the first congressional oversight hearing on the subject. In 1986, we did receive an excellent report from the Office of Technology Assessment on "Intellectual Property Rights in an Age of Electronics and Information." The OTA report serves as yellow cautionary light for the intersection of intellectual property law and new technologies. As regards software, it concludes that Congress must proceed carefully and cautiously, since the protection of functional works blurs the distinction between writings and inventions. Ten years of time represents several generations of developments in the computer industry. Changes come fast and furious, and to generalists in the Congress, the changing landscape may indeed be difficult to understand. Today we have issues pending before us that would have received scant legislative attention a decade ago, or which were only briefly mentioned then in the OTA report. Software patents are being applied for and granted at an increasing and, some would say, an alarming rate. Does the Patent and Trademark Office have the requisite expertise and access to the broad expanse of prior art in order to make decisions about patentability? Similarly, international intellectual property issues have arisen. Many countries have followed the lead of the United States and, indeed, have been pressured by the executive branch to place software protection under copyright. In March of this year, the United States joined the Berne Copyright Convention which sets minimal standards for member countries to respect. Given our trade negotiations and Berne membership, have we waived legislative flexibility to make necessary modifications to our own law? This hearing is not designed to answer all the questions that might be raised. Its goal is to stimulate debate and to promote understanding, rather than to resolve controversies among competing interests. Before recognizing our first witness, I would ask unanimous consent to insert in the hearing record an OTA staff paper on software technology, which discusses basic software technology, including a brief analysis of software, programs, programming languages, and algorithms. Subcommittee members were previously supplied an OTA staff paper on "Intellectual Property Protection for Computer Software" which identifies questions that Congress might wish to consider in this oversight endeavor. [The information follows:] |