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been a much more useful endeavor. What we did was extend everybody's protection whether they ever needed it or not.

Mr. LANGE. I agree with you, and I suppose it is not too late to have another bite at that part of the apple. But, of course, the theorist counterargument is that there is then a threat that a work will be forfeited and injected into the public domain through some inattention or through some mistakes as sometimes did happen.

It seems to me that that is a legitimate concern but one to which you could fashion an adequate response by making the renewal almost mistake-proof.

As I gather, what you would like to have is a copyright term that can go up to an average of 75 years if someone is really affirmatively inclined to take it that long, but understanding that most people won't be, you would let most interests lapse. That makes perfectly good sense.

Mr. KASTENMEIER. Yes; I think we could make it nearly mistakeproof. We could even require an affirmative act to let it lapse, for example.

Let me ask you a question that I think I asked the first witness and that the second witness answered without being asked.

Do you think society is better served if the law responds to changes, particularly in technology as related to copyright, as changes occur or if the law tries to anticipate changes?

Mr. LANGE. I think you should do both. I think you should anticipate change by having clearly in mind what you will require of people who then want you to respond to specific proposals.

That is why I am suggesting that something-of course I don't mean this in a literal sense-but something akin to a civil procedure with burdens and presumptions would allow you to tell people upon what terms they could hope to have new copyrightable interests. Once the procedure is in place, then, I think it does become more nearly a matter of responding to new technologies as they are sufficiently developed to be defined.

Mr. KASTENMEIER. Do you see things happening by inadvertence, that is to say, technology and practices overtaking the 1976 law to produce unintended results in terms of protection or nonprotection?

Mr. LANGE. Do I see that coming?

Mr. KASTENMEIER. Do you see this now in some situations?

Mr. LANGE. Yes; in the area of home taping, for example, I think that is basicallly what is happening.

I also think that the library accords on fair use are not working very well.

But in the main, it seems to me, the Copyright Act is working pretty well. There are some gaps, some parts of it that don't address current needs but I don't think it is working all that badly right now.

If I may say one more thing about that or enlarge on that response a bit. When you think about the specific proposals that are coming to your committee right now, they really are rather specific, parochial requests.

For example an amendment of the first sale doctrine in the context of video cassettes is linked, I grant you, to technological change, but it is not fundamentally implicated in any great move

ment in society. This is a very specific response that is being asked for by one segment of the protected users or protected copyright proprietors.

I am not convinced in short that the act is yet under quite the strains that some of the more sweeping statements today might make it seem.

Mr. KASTENMEIER. Do you think that we should make changes in the copyright law for purposes of rectifying what appear to be major economic problems within certain industries?

Mr. LANGE. Should the law be amended to do that?

Mr. KASTENMEIER. Yes; that is to say possibly in some cases abandoning, or at least not primarily being concerned with, copyright principles; should we make amendments in the law to, say, benefit jukebox operators, or a declining record industry, or take care of musicians who are displaced by some form of music technology, or X, Y, or Z-should these be considerations that might be reflected in copyright law?

Mr. LANGE. They are fair considerations but it doesn't automatically follow that the law ought to be changed. I mean, to some extent, as I said in the testimony, I don't think the copyright law has to protect buggy whip manufacturers from passing on into oblivion.

There are times when an industry may simply have to change its marketing strategies or turn to something else.

But, yes, of course it is fair for the copyright law to entertain arguments on behalf of one industry or another for change. I think those changes ought to come, however, only if the proponents of the change can show both why they are entitled to it and why, as against their entitlement, someone else who may now be benefited by the law the way it is, ought to have to bear the burden of that change. Because generally, there is a tradeoff involved.

Mr. KASTENMEIER. In other words, something more than economic need?

Mr. LANGE. Something more than unilateral economic need. Mr. KASTENMEIER. The last question: Do you have any comments on possible changes in criminal law to provide enhanced criminal penalties for copyright violations?

Do you have any particular notions or feelings about resorting to criminal penalties for violations of the copyright law?

Mr. LANGE. My opinion is that in general, criminal penalties are not a particularly effective, or in legal philosophical terms, a particularly desirable way to enforce copyright interests.

I don't find the present terms of the law particularly objectionable in themselves but I certainly wouldn't argue in favor of expanding, or increasing them.

Mr. KASTENMEIER. One of the problems has been that enforcement by the Justice Department has been relatively infrequent.

It has also been argued that one of the reasons for it is that the penalties are not very great, therefore, U.S. attorneys do not see these as compelling criminal cases to pursue. Of course, it is like getting into an escalating war. If a 1-year prison term and $50,000 fine isn't enough, make it 3 years and $100,000. I am not sure that that solves the problem.

That's all the questions I have.

You have been very, very helpful. I apologize to you that my colleagues are not able to be here. We will attempt to insure that your statement is read by them and will come to their attention. Certainly, they would feel as indebted to you as I for your testimony today.

Thank you.

Mr. LANGE. Thank you.

Mr. KASTENMEIER. That concludes today's hearing. We will convene tomorrow for further hearings on copyright and technological change at 10 o'clock in the same room. There will be two witnesses tomorrow and until that time the committee stands adjourned.

[Whereupon, at 1:25 p.m., the subcommittee was recessed, to reconvene at 10 a.m., Thursday, July 21, 1983.]

COPYRIGHT AND TECHNOLOGICAL CHANGE

THURSDAY, JULY 21, 1983

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to call, at 10 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding.

Present: Representatives Kastenmeier, Mazzoli, Glickman, Moorhead, and DeWine.

Staff present: Michael J. Remington, chief counsel; Deborah Leavy, assistant counsel; Thomas E. Mooney, associate counsel; and Audrey K. Marcus, clerk.

Mr. KASTENMEIER. The subcommittee will come to order.

This morning the subcommittee is continuing its hearings on copyright and technological change.

Our first witness will be Dr. Fred Weingarten, who is program manager of the communication and information technologies program at the Office of Technology Assessment [OTA]. OTA is an agency of the Congress responsible for performing long-term analysis of technological trends and their impact on public policy. Dr. Weingarten, who has an undergraduate degree in engineering and a doctorate in mathematics, has gained a reputation as an expert in information policy.

We are very pleased to greet you, Dr. Weingarten. You may proceed as you wish.

TESTIMONY OF FREDERICK WEINGARTEN, PROGRAM MANAGER, COMMUNICATION AND INFORMATION TECHNOLOGIES PROGRAM, OFFICE OF TECHNOLOGY ASSESSMENT

Mr. WEINGARTEN. Thank you, Mr. Chairman.

I would like to submit my written testimony for the record, and then comment on it and discuss it more informally.

Mr. KASTENMEIER. Without objection, your 16-page statement will be received and made a part of the record. You may proceed. Mr. WEINGARTEN. Thank you.

Mr. Chairman, I am the program manager for communication and information technologies at the Office of Technology Assessment. The Office of Technology Assessment, of course, is an analytical arm of the Congress. We are administered by a Technology Assessment Board that is chaired at this time by Congressman Üdall, and has five other distinguished Members of the House of Repre

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