People's Republic of China. He is Chairman of the Board of Directors of the Direct Marketing Association and a member of the Board of the Copyright clearance Center and the International Freedom to Publish Committee.

John Kernochan, panelist, is a professor at Columbia University School of Law. He was executive director of the Council for Atomic Age Studies from 1956-1959 and a member of the President's Commission on the Status of Women from 19621963. He serves on the Board of Directors of Volunteer Lawyers for the Arts; he was chairman of the Board of Galaxy Music Corporation.

John C. Taylor III, panelist, is Chairman of the Carnegie Corporation and a member of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. He earned the LL.B. degree of Yale in 1950, where he was a member of Phi Beta Kappa and received the Order of the COIF. He is a member of the Association of the Bar of New York City and its committee on Copyright and Literary Property, and of the American Bar Association.

George Willoughby, panelist, is Vice-President for Corporate and Legal Affairs at KING Broadcasting Co., a major television and communications corporation in Seattle. A graduate of Stanford Law School, he practiced law in Seattle for 15 years before joining KING. He is a member of the Seattle King County Bar Association and other bar associations.

Frederick Pohl, speaker, has won numerous awards for his science fiction writings. He received the International Science fiction Achievement Award in 1966, 1967, 1968, and 1973, and the H.G. Wells award in 1975. He has also worked as an editor for publishing companies such as Popular Science, Galaxy Publishing Company, and Bantam Books. His books include "The Space Merchants," "The Case Against Tomorrow," Drunkard's Walk," and "Galaxy Reader." He has been a member of the Science Fiction Writers of America, the American Astro Nautical Society and the British Inter-Planetary Society. He has also served on the Council of the Authors Guild.

SUMMARY OF RAPPORTEUR

(By Paul Goldstein, Professor of Law, Stanford Law School)

PROCEEDINGS OF CONGRESSIONAL COPYRIGHT AND TECHNOLOGY SYMPOSIUM, FEBRUARY 4-6, 1984, FORT LAUDERDALE, FL

In my role as Rapporteur, I have been asked to synthesize this weekend's proceedings, and to try to distill the important lessons learned. Although, obviously, I cannot reflect everything important that has been said here, I believe that I can, at the very least, describe three, central themes that have pervaded this Symposium and that have variously been touched on in the remarks of the speakers, in questions from the participants, and even in some of the technology exhibits. In the spirit of this symposium-which is to take a highly objective, policy-oriented look at copyright and the new technologies-I shall express these three themes not in terms of solutions, but rather in terms of options; not in terms of answers, but rather in terms of questions.

Haines Gaffner accurately capsulized the first two of these themes in his reference to the two polar concerns of policymakers in this area: software on the one hand, and transmission and access on the other.

Software. Should computer software, and allied subject matter, be protected by copyright? This simple question leads to some deeper issues: Do we need more investment in the production of computer software? If so, will copyright protection induce the correct level and direction of investment in software production? Will some other intellectual property be more efficient? More equitable? The importance of these questions is amplified by yesterday's demonstration of CDC's PLATO library-a library that, according to Jean Harris' presentation, consumed a one billion-dollar investment.

Transmission and access. The questions here concern rights and infringement, not only of new copyright subject matter, but also of more traditional copyright subject matter. To what extent should copyright subject matter be protected against new uses facilitated by computers and other new technologies? Note that it is characteristic of these uses that they will often be decentralized and undetectable. The problem created by such new uses were exemplified by at least two of yesterday's exhibits—the demonstration of home satellite antenna reception, and of the disencryption of Visicorp's programs by a competitor's program, named-with true gallows humor-"Copywrite."

I.

Should copyright protect computer software? The discussions this weekend have reduced this question into three sets of subsidiary questions:

A. Are market conditions in this field such that producers need some form of protection, or subsidy, to stimulate the desired level of investment? Jean Harris' figure-one billion dollars to assemble the PLATO library of programs-certainly suggests some form of protection is needed to enable investors in the position of CDC to recoup their investment, or that some form of direct subsidy-from government or private foundations-is needed to serve in place of private investment. It is suggestive, certainly, but not necessarily conclusive.

B. If it is concluded that producers do need protection, should that protection take the form of property rights, or will technical self-help-program encryption, for example-be more cost-effective? Martin Greenberger noted last evening that WORDSTAR-one of the most widely used programs-achieved its commercial success without resort to encryption. Further, the Visicorp example suggests the limits to self-help through encryption. And, even if encryption is found necessary to protect investment, and even if it did work effectivley, we might ask whether we want to encourage the development of forces that will devote fine minds, and much valuable time, to the production, and destruction, of ever more elaborate encryption safeguards-minds that might more productively be applied to the development of new, positive programs instead.

C. If all of this suggests that legal protection is desirable what form should that legal protection take? Is copyright the appropriate vehicle for protecting software? Copyright law's traditional design has evolved over centuries to meet quite different needs, and may not be appropriate to this subject matter. Copyright might, for example, offer more protection than is needed in some respects, and less than is needed, in others. Register of Copyrights, David Ladd, addressing a closely analogous issue, observed yesterday that, assuming some kind of protection is desirable, it may be necessary to look outside copyright when dealing with data bases. Do the costs and benefits of (i) taking the copyright route net out to be more or less favorable than the cost and benefits of (ii) adapting some other, existing intellectual property system to the protection of software, or (iii) adopting some entirely new system specifically designed to protect software? Earlier today, Congressman Smith raised some questions that pointed in this direction-asking whether it might make sense to break copyright down into more discrete subject matter-oriented vehicles.

II.

Let me turn to the second theme touched on in these proceedings-transmission, access, consumers, and the administration of rights in both traditional and new copyright subject matter. What have we learned here?

One thing we've learned is a new word: downloading. From the examples given, though, I think we have also learned that this word is just a new way of describing an old and central quandary in copyright law: What uses of copyrighted works should be proscribed and what uses should be permitted? Although some of yesterday's speakers expressed the assumption that copyright law protects only against the production of a work in tangible copies, the truth is that copyright has, for well over a century now, also protected against a wide range of nontangible uses, such as often occur in downloading: performance, distribution, and more recently, under the 1976 Act, display of copyrighted works.

Although this might seem a minor quibble over words, I believe that it illustrates a larger problem in the legislative process: the risk of being distracted by new jargon and the risk of thinking that these new terms express new phenomena that need to be treated on new principles. The larger, connected danger is that of false analogies. As Judge Breyer noted earlier today, the analogy that grips Congress' attention will be the one that controls it.

Put in this frame, the question of liability for downloading does, however, helpfully exemplify the main challenge that the new technologies pose to the administration of copyright: should we extend rights against uses, facilitated by new technologies, that are widely dispersed, decentralized and frequently undetectable—not only downloading, but also library and office photocopying and home videotaping and audiotaping? How do we manage copyright in a world in which everyone is his or her own publisher or producer, truncating the traditional patterns of distribution?

In an ideal system of property rights, painted by some participants in this Symposium, everyone who uses a copyrighted work will pay something for their use-be it

an amount that reflects the information's cost to the producer, or its value to the user. Yet, from the very start, copyright law made no pretense that this ideal was attainable, efficiently or equitably. From the beginning it was assumed that many uses of copyrighted works would go uncompensated. The married woman who bought a copy of "Uncle Tom's Cabin" and, after reading it herself, shared it with her family and then with her friends, paid neither more nor less for this widelyused copy than the lonely bachelor who bought a copy and only read it himself.

What has changed is that the new technologies have dramatically escalated the degree to which copyright uses today may go undetected and uncompensated. Now that the new technologies have disabled market transactions in many contexts, the question arises whether these new uses should be free, or whether the basis should be laid for new forms of market transactions.

The question whether new rights should be created has quickly been overshadowed in our discussion by the question: How can the transaction costs of policing copyright uses be reduced to acceptable levels? Don Devine has referred to such relatively low-cost, and non-intrusive compensatory schemes as volume discounts to major centralized users. Another suggestion was dual pricing under which libraries and other centralized users would pay one-presumably higher-price while individual users paid a lower price for the same work. Another possibility, noted by Mel Harris, is simply self-policing among individual users.

Should new institutions be erected to police new rights? One caution, pointed out by more than one Congressman at this Symposium, is that we must be careful to avoid enacting laws that cannot be enforced, for the result will be disrespect for the law generally. A closely related point is that we must do what we can to educate the public as to the purposes of copyright law, generally.

If new laws and institutions should be created, should they be aimed at simulating market results or should they be aimed at some other object? Should they be run by government agencies, of the sort described by Chairman Brennan of the Copyright Royalty Tribunal, or by private organizations, like ASCAP, and BMI, as described by John Taylor and John Kernochan? Or should they folllw the pattern of the Copyright Clearance Center, as described by Alexander Hoffman? And, if these institutions are to operate in the private sector, should they be regulated by antitrust decree or otherwise?

There has been some suggestion, that the problems that the new technologies have created, by proliferating decentralized uses, should not be allowed to obscure the potential ways in which these very same technologies-as data storage, computation and retrieval-can in fact be employed to enable every user to pay for what he or she uses, by maintaining, recording and calculating each use, be it photocopying, or borrowing from a library—or downloading, for that matter. Needless to say, though, the concern for protection of individual privacy, as expressed by Mr. Berman, is implicated here.

Although the problem of decentralized uses has occupied center stage in the discussion of rights-in the Congress, in judicial decisions, in public policy debates, and in our own discussions, too-I should note another aspect of the administration of rights, that was considered in this Symposium and that was well underscored by the remarks of Joseph Lash, John Taylor and John Kernochan: What are the implications of these new, technologically facilitated uses for the returns paid directly to the authors, composers, and artists who make the copyright engine run? In what ways can new technologies be harnessed to acheive the more equitable distribution of royalties to the creators of copyrighted works? Parenthetically, Joseph Lash's example of his photocopying activities in Columbia University's Russian collection should remind us that the questions of use and production are closely connected in copyright: To produce knowledge requires using information created by others. This knoweldge, once produced-and copyrighted-will in turn become a source of information for still others in their production of knowledge, and so on, in what is hoped to be a never-ending chain.

III.

Finally, I would like to touch on a third theme that, although not expressly addressed in these proceedings, underlies all that has been said and, indeed, represents the very reason for our being here: How can the House and Senate Subcommittees charged with responsibility in this area, and how can the Congress generally, best position themselves to monitor the new technologies and to adjust copyright, and possibly other intellectual properties, to maintain the needed balance between incentives to the production and consumption of new information?

If any one point has been made clear these past two days, it is that technology is advancing at a pace far greater than the capabilities of the national legislature to keep up with it. Congressman Kastenmeier poignantly reminded us in his introductory remarks that Congress, in passing the 1976 Copyright Act, perceived the need to temporize on some emerging, already problematic, technological issues in order to achieve final resolution of issues that had long been pressing from remedy. I was struck in this connection by Haines Gaffner's bromide respecting the new technologies; "When you are working on the cutting edge of technology, the main thing is to stay behind the blade." That applies at least doubly for Congressional efforts: "When you are legislating on the cutting edge of technology, the all-important thing is to stay behind the blade."

I say, "it applied doubly," because there are variables other than technology and the legislative process that are implicated here. Let me just identify four.

A. One is the crucial issue of timing. Earlier today, Senator Mathias noted the ever-present danger that, even while Congress is deliberating on these important issues, changing economic realities may very well entrench the new technologies, thus concluding the issue being deliberated, and precluding a principled result. Don Devine pointed out that personal computers will experience their greater growth in the next decade-a far shorter horizon, no doubt, than Congress can possibly contemplate in dealing with that growth.

B. Second, is the problem that economists refer to as distributional effects, and that Dr. Spurlin more graphically described as the possibility that public policy decisions in matters involving the new technologies can very well widen the gap between the have and the have-nots-or, as Clyde Washburn indicated, between rural and urban users-in terms of access to vital information technologies.

C. Frederick Weingarten alluded to the great intellectual traditional of sharing ideas that characterized the efforts of early developers in this field, and that characterizes first-rate scientific research generally. Will existing or new intellectual property laws erect barricades to otherwise collegial communication? Care must be taken to attend to these possible effects which can only impede technological advance over the long run.

D. Fourth is the international setting. This naturally raises the question of the extent to which steps to encourage software production will affect our national balance of trade. Related to this is the question of piracy on an international scale as devloped by Harvey Zuckman's questions to the panel he moderated earlier today. There is also the question of our ongoing obligations under international copyright treaties. In this last connection, I might note that while it might seem efficient to break copyright into separate laws, each dealing with a discrete form of subject matter, this method, to the extent it produces substantive gaps between our law and the laws in force elsewhere in the international copyright community, may put us in default of our obligations under the Universal Copyright Convention and effectively bar us from ever joining the more rigorous Berne Convention.

What institutions can Congress employ and encourage to engage in the needed, systematic monitoring and oversight?

1. More meetings such as this would certainly be productive; but they are also incredibly taxing, and I don't know how frequently the members of Congress-occupied with so many other concerns-will find themselves able to pay that tax.

2. The hearing process is certainly another possibility. I would remind you that Macaulay's seminal statement on copyright, already alluded to by Judge Breyer and Professor Kernochan, was made on the floor of another great deliberative body-the House of Commons. The broad-ranging hearings conducted by Congressman Kastenmeier's Subcommittee this past July, on copyright and the new technologies, is certainly a more immediate example.

3. The governmental commission is another possibility. CONTU—the Commission on New Technological Uses of Copyrighted Works-created by the 1976 Act, provided some helpful guidance in the area. Senator Mathias' Bill, S. 2192, to establish a Commission to Study the Concept of the Public Lending Right also points in this direction.

4. Perhaps, too, there is a need to look outside Congress-to some independent facility, possibly university-based, funded through foundations or supported through some other means, to provide the Congress with systematic advice on these important issues of public policy.

I do not mean to suggest by any of this that the task of designing such an institution for oversight and reporting will be easy or quick. I only mean to suggest that, if I read the evidence presented at this weekend's proceedings correctly, the task is an important, and possibly a necessary, one.

[Press Release]

NEW TECHNOLOGIES IN THE INFORMATION AGE: COPYRIGHT OFFICE HOSTS
CONGRESSIONAL COMMITTEES AT NEW TECHNOLOGIES SYMPOSIUM

"So that intellectual property law, especially copyright law, can be a little wiser in responding to change, we have convened this symposium," said Rep. Robert W. Kastenmeier (D.-Wis.) in his opening remarks at the Congressional Copyright and Technology Symposium held February 4, 5, and 6 in Fort Lauderdale, Florida.

Noting that Congress faced a tremendous challenge in adapting the copyright law to "the greatest technological changes in history," Rep. Kastenmeier welcomed more than 70 representatives of the Congress, industy, business, law, and education to the Symposium.

"We would rather not be reactive; we would rather understand and anticipate change, if that is possible," Rep. Kastenmeier said.

He noted that he and Senator Mathias (R.-Md.) had requested that the Copyright Office organize a symposium which would bring together futurists, high-tech representatives, and copyright experts because "technology is already overtaking the complete revision of the copyright law that we accomplished in 1976."

Senator Mathias, in his opening remarks, likened the Congress to Balboa when he first viewed the Pacific Ocean lying before him-full of wonder at a great new resource but knowing that what it meant was a matter of conjecture.

Senator Mathias said he believed Congress should leave the Symposium “with a new will to adapt new knowledge to the principle of copyright."

Librarian of Congress Daniel Boorstin explained his belief that society was prone to the "displacive fallacy"-a belief that every new technology would displace the old one .. that television would displace radio, that electronic news would displace print journalism, that the auto would displace the foot . . ."

But the development of technology is not displacive; it is cumulative," he said, "and that is what gives interest to what we are concerned with today."

Register of Copyrights David Ladd expressed his appreciation that the Symposium would provide an atmosphere where issues could be approached descriptively and analytically, not polemically.

"Everyone knows how in the last two decades the debate on these issues has been constant and even rancourous; we hope that at this symposium people can get the long view or least a view of where the horizon lies in respect to the effects of technological change," he said.

Attending from Congress were Senators Mathias and Jeff Bingaman (D.-New Mexico); and Representatives Kastenmeier, Frederick Boucher (D.-Va.), John Conyers (D.-Mich.), Hamilton Fish (R.-N.Y.), Carlos Moorhead (R.-Cal.), Harold Sawyer (R.-Mich.), Larry Smith (D.-Fla.), and key staffers from the House and Senate Judiciary Committees.

Nationally known authors Joseph Lash (who wrote, among other books, "Eleanor and Franklin"), and Frederick Pohl, author of many prize-winning books of science fiction, also attended the Symposium, and spoke of the effect of new technologies on the distribution and marketing of their books.

"We may be entering a post-print society," said Martin Greenberger, IBM Professor of Computer and Information Systems at UCLA, who delivered speech on "The Long-Range Future Impact of Computer and Communications Technology on Society."

The Symposium also featured hands-on demonstrations of new technologies. During these demonstrations both Senators and Representatives and others could be found cheerfully others could be found cheerfully punching away at home computer systems, gaining experience with the technology of satellite telecommunications systems, and trying out teletext and videotext services."

Also on view were optical and audio laser-read disks-their demonstrators predicted that within the decade consumers will throw away their turntables and replace them with laser-beams.

One of the more dramatic exhibits featured a large satellite dish receiver set up outside the meeting room to demonstrate that new technology.

Other exhibits included a CBS teletext service called EXTRAVISION which will provide viewers with free news and weather up-dated every 15 minutes, software from Visicorp, home entertainment centers from North American Phillips Consumer Electronics, and the PLATO software learning system for elementary and high schools, Publisher John Wiley and Sons, presented a sample of their electronically published work, as did the New England Technology Group and the Sony Corporation.