I think these are all legitimate questions that you have to ponder.

Mr. KASTENMEIER. Another question is: there is a reference to computers and privacy and whether copyrighted material will be accessible might there be tendencies to hide masses of copyrighted works in computers to which there is very little access. Now, maybe that won't make very much money for the owners or authors of that material. Isn't there a danger that there will not be accessibility to copyrighted works because of the medium, that is, because of the format, or process, or whatever.

Mr. COATES. Almost certainly some materials will fall in that category. But I don't think that can be a generic problem. It will be an idiosyncratic situation.

My sense of the way technology is developing in the use of information is that the more we promote the technology, the lower costs become and the more readily available, the greater the market for a spread of products of varying qualities. Just a guess; maybe 10 percent of the users will go for the grub reproduction, low cost, steal-it-if-you-can model. But that is no problem.

What happens as the market expands is that most people's taste and preferences will go up, not down. And they will want a product that is produced in a better or best possible format.

The future ought not be guided by the grubs of the world but ought to be guided by the social opportunities implicit in mass information being available in a mass society. The grub situation is self-limiting.

Mr. KASTENMEIER. Certainly the means of communication, the signals themselves, are invisible. I guess we have thousands of signals in the atmosphere that are available to be either received or intercepted, which NASA does on a routine basis, such as free radio broadcasts, or pay television signals, or gradations in between.

One of the problems will be, presumably, unauthorized interception of those signals.

Do you have any observations to make about interception of signals?

Mr. COATES. That could very well be, again, a marginal problem, irksome, but marginal.

Suppose you took the newspaper as the model for the future dissemination of information in the mode you are talking about. Newspapers don't pay their own way for the 15 or 25 cents you plunk down on the newsstand. Newspapers pay their way because people put advertising in them. As this sector matures, the service may be marketed free for the ancillary and additional information that is carried by it.

We are in a transition period. It is not at all clear the way the marketing of this high density information will go.

The other side of this question it is useful to keep in mind is that in terms of broadcast, we are talking about the cost of broadcasting falling into the basement with 50 to 100 channels available. The problem will not be people stealing your material. It will be do you have anything worthwhile to say, that anyone will want to listen to or to view.

There will be tremendous quality competition. The competition in one form will find vast numbers of small users seeking other small numbers of users to form special networks.

My sense of the future runs counter to the corporate model of how this is evolving.

Mr. KASTENMEIER. The question was asked what role the copyright law and intellectual property protection play, or should play, in the future. My colleagues raised the question whether semiconductor chips should be afforded some sort of patent, copyright, or design protection.

But the fact remains that we have advanced thus far with no protection.

Mr. COATES. There are two aspects to that problem. One is that the concept of patent and the concept of copyright are converging. It is not at all clear whether that convergence implies scrapping and starting over or reshuffling the deck and reassigning things from copyright to patent and patent to copyright.

The second aspect goes back to the point I made earlier: Do you want to provide the copyright for the physical embodiment? Or do you want to provide copyright around capability?

If it is at all feasible to do it in terms of capability, that would be the far more socially significant mode in which to frame it.

Mr. KASTENMEIER. I was was questioning whether protection is needed at all, whether it isn't overstated. If you can literally manufacture something even though it theoretically would be protectable and if you can put it out on the market, you can still prosper even though you may not have some form of

Mr. COATES. From the trend toward integration of the global economy, much of American industry faces a real threat from the Chinese copies-low cost production of any kind of electronics, semiconductor, physical embodiment, in Hong Kong, Taiwan, Korea, Singapore, and Malaysia.

It is not only real but growing. In terms of international trade and international marketing, some attention has to be given to that question.

Mr. KASTENMEIER. My last question is on anticipating and developing images of the future. I think Mr. Mazzoli dealt with that for a moment.

How are we to do this? How are we as a committee, or a Congress, or as people interested in the question, to develop a common image of the future in which we can anticipate copyright needs?

Mr. COATES. There are two ways to do it. One is to look at the process side of what you might do. How do you draw forth more witnesses? How do you commission studies? How do you get the Federal agencies to do things? How do you get inputs from interested parties?

That process side you, obviously, could pursue.

It seems to me, however, that the important thing is what you want to get out of those images of the future.

There are some anchor points for planning. I suggested two of them earlier. One is that the technology is totally interchangeable and, therefore, one can see anything produced and coming from, and being manipulated by a variety of media. That gives a very informing sense of the future.

The second image I suggest was that the investment per capita is going to be severalfold higher. It is moving to center place in our domestic economy.

A third kind of anchor point that one would get out of these deliberations is that the technology is intrinsically democratizing. The democratizing aspects of the technology ought to be encouraged, not thwarted, by any kind of constraints you put on it. This is the sense of the intellectual information commons.

Out of the deliberations and creating images of the future, you can develop more of these anchor point concepts. They would inform your legislation.

Mr. KASTENMEIER. Thank you for that guidance. We very deeply appreciate your testimony here today.

Mr. COATES. Thanks for having me.

Mr. KASTENMEIER. Our last witness today is Prof. David Lange. Professor Lange has taught at Duke University School of Law since 1971. His area of expertise is intellectual property, communications, and entertainment law.

He brings with him a diverse experience. Prior to becoming a teacher of law he was a partner in a motion picture production firm, a practicing lawyer, and a public servant. He was in fact chief counsel to the mass media task force, National Commission on Causes and Prevention of Violence.

Professor, it is a pleasure to greet you and we are most pleased to hear from you.

TESTIMONY OF DAVID LANGE, PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW

Mr. LANGE. Thank you, Mr. Chairman.

I welcome this opportunity. I can assure you that I appear before you suitably chastened by the parting remarks of my two 14-yearold sons who told me as I was leaving, that if this committee hoped to elicit expert testimony, then surely in my case some mistake must have been made.

I told them I thought the question was essentially existential and that, in any case, I wanted them to spend the day cleaning up the yard.

Meanwhile, I do have some remarks to bring you and, unlike Mr. Coates, I am sufficiently rooted in the past-and take copyright and intellectual property law to be sufficiently well establishedthat what I really propose, Mr. Chairman, is just to comment on how I think the existing system might approach the problems posed by new technology and to suggest some of the presumptions and challenges to new technology that I think you and the members of your subcommittee might suitably bring to people who want to extend copyright interests or who want to have new copyright for some new technology.

In short, I don't propose any kind of grand renovation of copyright. Having just finished 15 years in that effort yourself not long ago, I am sure you would not welcome that kind of undertaking and, indeed, I must say, I don't think it is necessary.

The copyright law as it now exists and has existed since January of 1978 is suitable in the main for the kinds of copyright interests that it protects.

I don't mean to say that I think it is easy always to apply copyright principles. Certainly, as you know, copyright principles are very difficult to decide in particular cases.

But the law doesn't work badly and there is no particular reason, in my judgment, why the law ought to be radically revised or why, in effect, we ought to have to reinvent the wheel in order to decide whether or not to do something about particular technologies.

My view is that in approaching the subject matter of new technology, we need to keep in mind the bargain that we strike when we allow a copyright proprietor to have a copyright interest. The bargain is that in the long term, in exchange for that temporary protection, we expect to have whatever it is that is the subject matter of that creative expression passed into the public domain where it then becomes part of the yeasty materials from which we invent new works.

It is the public domain that I think is most seriously threatened when new technology and new ideas for protection in new technology are raised. There is always the prospect of striking a bad bargain.

But I do not mean to sound any kind of dramatic note or to suggest the death knell of what Mr. Coates calls the intellectual commons, which I think is the same as I imagine when I use the term the public domain.

I think that if we are careful and if we are willing to allow new ideas to be brought on against the background of what I have called in my testimony a civil common procedure, we can allow the questions of new interests to be raised and argued out in the security of knowing that we won't allow these interests to be proliferated too widely or too advantageously unless the necessary burdens of proof have been met and the public domain provided for.

What I have in mind I have proposed in my testimony, which I hope you will receive for the record without my having to read it. Mr. KASTENMEIER. Without objection, of course.

Mr. LANGE. What I have proposed in this testimony is a series of inquiries that I think proponents of protection for new technology ought to have to meet and I begin to list those on page 6 of my prepared statement.

To begin with, Mr. Chairman, it seems to me that if new technology is to have the protection of copyright in some fashion, it ought to first meet a threshold test. The first requirement is that the expression or the embodiment of that technology, ought to sufficiently closely resemble copyright interests that we already have provided for in the law. We should not too greatly stretch the existing constitutional dimensions of copyright and or too sharply break with the kinds of copyright protections that we have in the 1976 general revision.

The analogy that I have in mind is this: It seems to me that if someone wants to call a garment a vest, he ought to have to produce something that doesn't have sleeves. If you are going to wear a garment that has sleeves, then I think you ought to call it

something else. It is no longer a vest, I think, in the meaningful sense of the term.

I think that if a new technology is introduced and brought to this subcommittee for protection, then I would suggest that this is the first thing that ought to be inquired. Does this new technology essentially resemble what we have accustomed ourselves to thinking of as the subject matter of copyright and does it result in the kinds of protected expressions that copyright has already proven itself reasonably capable of dealing with? Professor Nimmer, for example, raised this question in the context of micro chips in 1978, in the new technology report.

If the answer to this threshold question is yes, then it seems to me that the proponent ought to go ahead and meet some additional burdens of proof.

If the answer is no, it does not necessarily mean, of course, that no protection ought to be extended to the new interest. It only means that if protection is to come, it probably ought not be copyright.

It may be that a patent is appropriate; it may be that something really new is appropriate for protection. But I don't think that we are required infinitely to stretch the boundaries of copyright law in order to accommodate interests and technology which are simply not within the fair province of copyright as we can sensibly deal with that subject.

Now, if I begin to sound as though I am hidebound and rigid and incapable of responding to anything new, I assure you I don't mean to. I am quite capable of accepting new media of expression; and perfectly willing to entertain the idea of new subject matters of copyright. But I think it is fair to raise the threshold question that Professor Nimmer did.

So the initial question is whether the new technology is fairly within the framework of what we are accustomed to thinking of as copyright? And if it is, then we can proceed to some secondary questions.

The secondary questions could be framed in any number of ways. I have suggested five questions in my prepared statement that I think the proponent of a new interest ought to have to meet.

The first, it seems to me, is this: Is the subject matter newly to be protected by copyright susceptible to a definition that will allow us to come to some sensible common understanding of it?

Is the expression that is to be protected capable of a definition that will allow people to understand where the boundaries of that copyright lie and what the dimensions of the copyright are?

A second question that I think that proponent ought to meet is whether the new protected interests can be set off against that part of the public domain which remains unaffected? In other words, can we complete the job of defining the new interests so that we both understand what it is that is to be newly protected and, also, what it is that is to remain in the province of the public domain? Those seem to me to be two questions that every proponent of new or extended protection ought to have to answer. And I think there ought to be something amounting to a burden of proof here, that is, if these two requirements cannot be met, if the definitions cannot be made satisfactory, then it seems to me that the presump