nizations within the U.S. Government that have interests or policymaking authority and international organizations through which we negotiate. So our problem may be a proliferation of these channels of negotiation rather than too few. On the other hand, I, myself, have not noticed that the questions of intellectual property protection, copyright, and so on, have really played a prominent role in that debate and it is possible that they need to be taken into consideration along with issues like privacy, information as a commodity, and so on, that seem to be central to it. Mr. KASTENMEIER. Mr. DeWine asked, is it necessary to protect creativity? And Mr. Glickman asked the question, is it possible that statutory copyright protection smothers new technology, provides a bar or limits perhaps even the transactional costs of it in society. Those are good questions. Yesterday, a similar question was raised by a witness; in fact, what is intellectual property? Today we are not clear. While the traditional author, composer, creator concepts still remain, alongside them we find that some creators are corporate entities that are not strictly individual any longer. There are perhaps machines themselves doing some of the creating. So we don't really know what is intellectual property absolutely clearly, and that may be a problem. As far as the necessity to reward creativity, and the conventional wisdom is that we should, there are cases such as the one we will go into next week on protection of semiconductor chips. Despite the fact that these chips are unprotected, this industry has expanded as though the protection itself wasn't actually necessary for the industry to explode. Now, that may not be an equitable or satisfactory situation, but it is an illustration, nonetheless, that an industry has not required protection in the past in order for it to move forward very rapidly in terms of development. Do you care to comment? Mr. WEINGARTEN. Yes, sir, I think that is an important question. A similar question is raised in my mind when I read articles or people tell me that computer programing is inhibited by lack of proper protection. And in the evening I go to the local program store to browse through their selection for my Apple at home, it in some sense doesn't seem to have inhibited the creativity and productivity for that industry. But there may be effects that are deeper and more subtle. So I wouldn't want to draw the conclusion that the programing industry doesn't need protection. I wouldn't even suggest such a thing. But I think the question is important. Mr. KASTENMEIER. Thank you. One last question: In your statement you said given the problems of feasibility of protection, we may need to develop new techniques to protect intellectual property that are more appropriate to the electronic technologies. While you have not purported to suggest all the answers, I wonder if you did have in mind any new techniques? Mr. WEINGARTEN. No, I didn't. Mr. KASTENMEIER. All right. You have been very, very helpful and we appreciate your presentation today, Dr. Weingarten. Mr. WEINGARTEN. Thank you very much, Mr. Chairman. THE GEORGE WASHINGTON UNIVERSITY Washington, D. C 20052/The National Law Center FRIDAY, JULY 21, 1983 AT 10 AM ROOM 2226 OF THE RAYBURN HOB STATEMENT OF PROFESSOR JOHN F. BANZHAF III BEFORE THE HOUSE JUDICIARY SUBCOMM. ON THE COURTS Mr. Chairman, and Members of the Subcommittee: I am honored to be able to appear before the Subcommittee this morning to help it to consider and to assess the implications of new technology; both on the narrow issues of copyright law and data processing, and on the broader issues of how our governmental institutions can best stay abreast of and deal with emerging scientific and technological developments. I will attempt to do this from what I believe to be a unique perspective: not as a representative of any particular interest group or point of view; not as a legal expert prepared to discuss the latest court decisions; but rather as one who first brought copyright protection to the computer field, and first alerted Congress to the need to consider data processing in its revision of the copyright law. Since that time I have been involved as an unpaid attorney bringing public interest legal actions in a wide variety of areas such as deceptive advertising, vehicle safety, environmental protection, discrimination, the needs of the handicapped, and political corruption including the appointment of a Special Prosecutor to investigate the Watergate situation, and the successful suit to recover money unlawful received by former Vice President Spiro T. Agnew. FOOTNOTES AND ATTACHMENTS TO BE PROVI DE D SEPARATELY Thus I come before you both as a strong and early proponent of providing copyright protection to the fields of data processing and other emerging technologies, but also as a public interest lawyer and consumer advocate wary of creating unnecessary monopolies, stifling creativity by individuals and small firms, and of excessive costs to the public. My hope is that my experiences as a former scientist- and engineer-turned-lawyer with various technoligies may be of some benefit to this Subcommittee. Twenty years ago the computer industry was in its infancy, but already a large and rapidly growing baby. There were over 20,000 large computers in operation at the time valued at over five billion dollars, and an estimated one billion dollars had already been spent on computer programs to operate them. Yet, strangely enough, there was virtually no legal protection available for these programs, and thus little incentive to develop general purpose programs or to share existing programs, except as a computer sales tool. Why was this? The Copyright Office had a policy against recognizing copyright protection for programs, apparently based upon a lack of understanding of what they were and the various forms in which they existed. Technical people familiar with programs probably had no knowledge of the copyright law, and of its possible application to protect these newly emerging and very valuable forms of intellectual property. Even the lawyers who presumably representated entities in the computer industry did not know enough about the two fields - computer programming and to put the two together and make a persuasive case for copyright protection. So, by default, the task fell to me as a second year law student at Columbia Law school. As part of a project to see if computer programs could be copyrighted, I A wrote two programs one on paper and one on magnetic tape and brought them down to the Copyright Office seeking registation. After some discussion, including my explanation of what they were and how they worked, the Cpyright Office reversed its previous policy and on May 4, 1964 agreed for the first time to register and recognize copyrights on computer programs. This was my first major exposure to the wide and probably growing gap between people knowledgeable about law, and those knowledgeable about science and technology: a gap which in another context was referred to by C.P. Snow as "The Two Cultures." My next experience with this critical communications gap occurred shortly thereafter. My copyright law research had led me, of course, to realize that Congress was then considering a major revision of the statutory copyright law; the first major revision since almost the turn of the century. Yet in searching through all of the study committee records I found only three references to the possible impact of data processing on the copyright law, or of the possible need to amend the copyright law to deal with this major new development. Mr. Chairman, all of these references began by saying, "Well, I don't feel competent, because I don't understand these machines well enough," or "I don't understand this business either." And, So, on June 17, 1965, virtually upon my graduation from law school, I appeared before another House Judiciary Subcommittee to testify "as the sole and very unofficial representative of the data processing community." I pointed out the need to amend the proposed copyright revision to accommodate data processing, and suggested an amendment. one from the industry or elsewhere supported this proposal, nor did anyone from any other group oppose it. No As difficult as it may be to believe, this already - major industry probably the fastest growing new industry at that time with clear implications for the future -- was totally ignored in considering copyright law revisions. I can only suggest that the reason, once again, was the inability of people in one field to know about and keep up a problem which is with important developments in another - already growing more and more serious as scientific knowledge and even scientific disciplines multiply, and as the rate of technological development continues to accelerate. What then can Congress do to deal with this problem, and to prevent such serious oversights from happening again? One answer might be to seek to recruit and retain more staff members with scientific and technical backgrounds. Such people might be better able than those without such backgrounds to determine which technologies would be affected by Congressional action, or would be most in need of it. They might also be better able to communicate with people in these fields, and to seek out their input when specialized information might be useful. As a simple example of the latter problem, I can cite from my own experience the reapportiorment area, where lawyers and legislators adopted a number weighted voting schemes to deal with the "one man, one vote" Supreme Court mandate. None of the lawyers on either side of these issues apparently realized that there might be mathematical problems involved with these plans, nor that there existed a branch of mathematics -- called "game theory" designed to deal with it. And naturally the people who knew about the mathematics paid little attention to the problems of reapportionment. It was only the fact that I came across the problem doing research for another law review article, and was aware of the existence of this mathematical discipline, which resulted in their analysis and eventual ban. - |