United States, and I might say satisfying or at least compromising the varied claims of book publishers, authors, record people, TV companies, and of course the general public. This resulted in the very important revision of the Copyright Act that was passed just a couple of years ago by both the House and the Senate.

This subject of the bill today, Mr. Chairman, the copying of industrial designs, is something new; it's new to me, it's new to the subcommittee, and indeed it's a new concept that apparently is new to the law of copyrights.

I also, as someone representing this area for 17 years, want to welcome to San Jose and Santa Clara County distinguished members of your staff, lawyers Bruce Lehman, Tom Mooney, and Audrey Marcus, who is also very welcome.

I am pleased to be here, I thank you for allowing me to participate in these hearings. My colleague, who also represents San Jose, Norm Mineta, I'm sure will be here shortly, and thank you again for having these hearings in San Jose.

Mr. KASTENMEIER. Thank you, Congressman Edwards. We appreciate that introduction and hospitality. We do hope that both Congressman Mineta and Congressman McCloskey, who expressed an interest in this issue will be present at some point during these hearings. I would have wished that a larger component of our panel could have been here today, but unfortunately a number of other conflicting activities are taking place involving Congress, so the panel that we have before us is the one that will be conducting these hearings. Mr. Mooney will be representing the minority, and Mr. Lehman is the general counsel. They are invited to ask questions as well as Mr. Edwards and if the other members appear they too may ask questions of our witnesses today.

Patent trademark and copyright laws arise out of the need to define rights in intangible creations which arise purely out of human intellect.

These rights cannot be protected from theft or trespass by simple physical possession by the owner. The drafters of our Constitution recognized this by specifically granting to Congress the

Power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their . . . writings and discoveries.

Two centuries ago, this responsibility consisted of defining the rights of creators of simple mechanical devices, books, charts, and maps.

Over the years science and the useful arts have, indeed, progressed to the point where we are called upon to consider defining rights in everything from new biological life forms to computer software. The legislation before us today, H.R. 1007, again requires us to wrestle with defining the rights of creators in the space age. H.R. 1007 would protect designs in computer semiconductor chips by including them under the copyright law.

[A copy of H.R. 1007 follows:]

96TH CONGRESS

18T SESSION

H. R. 1007

To amend the Copyright Act of 1976 to provide copyright protection for
imprinted design patterns on semiconductor chips.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 18, 1979

Mr. EDWARDS of California (for himself, Mr. MCCLOSKEY, and Mr. MINETA) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend the Copyright Act of 1976 to provide copyright protection for imprinted design patterns on semiconductor chips.

1

Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That the paragraph beginning "Pictorial, graphic, and sculp4 tural works" in section 101 of title 17, United States Code, 5 is amended by adding at the end thereof the following new 6 sentence: "Such pictorial, graphic, and sculptural works shall 7 also include the photographic masks used to imprint patterns 8 on integrated circuit chips and include the imprinted patterns

I-E

2

1 themselves even though they are used in connection with the

2 manufacture of, or incorporated in a useful article.".

The Santa Clara Valley is the center of the Nation's semiconductor industry. Therefore, it is appropriate that we hold our hearings on this legislation here in San Jose. This is the first time, indeed, I have been privileged to visit this remarkable community which is both a part of the Old California and part of the very, very new and modern California.

I would like to also say that the committee, the other members of the committee, and myself are not experts on this particular subject, but I suspect that we would feel optimistic about the possibility of resolving, if that's what is required, whatever problems exist here. To a very great extent the committee has been successful in the past in accommodating various interests in terms of copyright law, copyright protection as modified by acts of Congress.

I have today, in addition to the witness list we originally presented to you, included two other witnesses who will have a somewhat different position to communicate to us, and reorder the list by calling upon John Baumgarten to be the first witness today to start it off. We will then call upon Mr. Grove, Mr. Borovoy, Mr. Sevin, and finally Dr. Angell and two other witnesses which we will introduce at that time.

In the process of copyright, Mr. Baumgarten, together with the Register, Barbara Ringer, have played a very important role over the past years while we were considering this. It is a pleasure for me to greet, really, a Washingtonian up here in San Jose. We've elected to come to this site because so much of what we presume to effect by virtue of examining the bill before us is in fact manufactured, made here, and it affects the community as well as the nation in terms of the potential of any variation of law on the subject.

Mr. Baumgarten is general counsel of the Copyright Office in the Library of Congress. We are very pleased to greet a person who has been a great help to this committee and an expert witness for us on many, many other occasions.

Mr. Baumgarten.

TESTIMONY OF JON BAUMGARTEN, GENERAL COUNSEL, U.S. COPYRIGHT OFFICE, LIBRARY OF CONGRESS

Mr. BAUMGARTEN. Thank you, Mr. Chairman.

Mr. Chairman, Mr. Edwards, I have a prepared statement I would like to submit for the record. I will follow it rather closely, but I will not read it in its entirety.

Mr. KASTENMEIER. Without objection your statement will be admitted into the record.

Incidentally, at the outset, perhaps I will address myself to the staff, if there is no objection as far as the media is concerned, any coverage, photography or otherwise, of these events will be made in order.

Mr. Baumgarten, you may proceed.

Mr. BAUMGARTEN. Mr. Chairman, Mr. Edwards, my name is Jon Baumgarten, and I am General Counsel of the U.S. Copyright Office. I appear here today in support of the principle of protection "for imprinted design patterns on semiconductor chips" reflected in H.R. 1007; at the same time, I plan to suggest several issues we

47-588 O- 79 - 2

believe the subcommittee should consider before approving that bill in its present form.

In summary, and on the basis of our own limited knowledge of the relevant technology and subject matter, we believe first that the layout design of semiconductor chips does in fact embody original, creative intellectual effort; second, that the "photographic masks" and "imprinted design patterns" referred to in H.R. 1007, are tangible representations of the designer's effort; and third, that the expression of that effort in a particular drawing, layout, mask, and chip design is not strictly determined by the function to be performed by the chip, and represents a choice from among varying alternatives.

Accordingly, we feel that Congress may well conclude that the "photographic masks" and "imprinted patterns" covered by H.R. 1007 are "writings of an author" in the constitutional sense, and "original works of authorship" that it may choose to protect under the Copyright Act. However, our expertise in the area of integrated circuit chips and related devices is quite limited, and we have a number of questions we urge the subcommittee to consider before it approves either the principle of copyright protection or the terms of H.R. 1007 itself.

Before proceeding to these questions, Mr. Chairman, it might be helpful to outline our current registration practices with respect to semiconductor "chips" and related materials, the bases for these practices, and our understanding of the industry's reaction to them. Before doing so, I would remind the subcommittee that the Copyright Office does not "grant" or "deny" copyrights. Under the act of 1976, if a work is copyrightable subject matter, it is "automatically" copyrighted as soon as it is "created." Although registration in the office has a number of advantages it is not a condition of copyright. If the Copyright Office refuses to register a work, a court may still conclude that it was in fact copyrights; conversely, our registration of a work, although having certain evidentiary effect, does not preclude a judicial determination that it is not protected.

Turning to our practices:

First, with respect to schematic diagrams, "mylar sheets", photolithographic "masks" and similar representations, the Copyright Office will generally now register claims to copyright in these works. We consider them to be in the nature of scientific or technical drawings-an architectural blueprint might be another example-which convey or depict information. I would note that within the office as one proceeds in stages from the original hand-drawn paper-type layout to the mask itself, we have occasionally raised questions in correspondence due to uncertainty on our part as to whether the masks and like devices do in fact convey information or are merely a mechanical adjunct of the manufacturing process. Notwithstanding these questions, our general rule is that we will make registration for the diagram or mask.

It is our understanding that the proponents of chip protection are hesitant to rely solely on registration of the diagrams, sheets, and masks for at least three reasons: