would add also the computer crime and even privacy law, for the privacy law also is an attempt to legislatively control or vest some property rights in certain kinds of information. In any consideration of copyright legislation, it seems to me that this committee needs to balance this specific form of protection against other alternate forms, including computer crime law, and including the possibility of technological controls mitigating against any need for a modification of the law. In other words, one could argue, "We'll let the technologists and the industry figure out how to protect their information on their own. Encryption and various other kinds of computer security technologies will take care of certain types of piracy problems if the industry is left to itself." Mr. KASTENMEIER. If I may interrupt, would you restate the five areas of law to which you added computer crime legislation? Mr. WEINGARTEN. And privacy. Yes, sir. There were patents, copyrights, trade secrets, the law of unfair competition-which, evidently has been used to protect information-and trademark. Mr. KASTENMEIER. Thank you. Mr. WEINGARTEN. To that, I added computer crime and privacy. Mr. KASTENMEIER. You could probably also add regulation by the FCC. That certainly is a limiting factor on property rights, which doesn't really fall in any of those categories. Mr. WEINGARTEN. Yes, sir. Then there is a much broader category of laws that affect the technology and the way it is used and the kinds of information that are transmitted across it. The FCC certainly does regulate. I think they try to avoid it, when possible, but they do regulate content. Another question that came to my mind last night after this testimony had been written, but one that I first ran into at the National Science Foundation as a program director, is the issue of the Government interest in information products and services that are developed by the Government. At the National Science Foundation, very often my grantees would be developing data bases or programs that it would be in the interests of the scientific community to put into the public domain, to give to other scientists working in the same area. Yet, in some sense, to put them into the public domain would end up competing with proprietary services offering similar or related services. I would suspect that the issue is growing in importance, because the computer program marketplaces are growing in importance. In conclusion, I suggest that the Congress in general and the subcommittee specifically needs to take a broad perspective of the legislation in front of it. I line out three dimensions to that breadth. One is technologically. We need to look at all dimensions of technological change and not focus on one technology at a time and try to somehow put in a patch for this technology and a patch for that technology, et cetera. The second dimension is the pace of change, or time. Technology and services are changing so fast in this area that, in many cases, they are outpacing the legislative process. If one focuses too much on very current problems, by the time the law is modified to correct that problem, the problem no longer exists because we have another type of problem, we have another kind of service, another kind of technology has come up to modify it and, in a sense, outpace the legislative process. The third dimension of breadth is the mechanisms we chose to protect the information-whether we choose to create entirely new mechanisms to deal with electronic information or the various forms of knowledge in order to encourage innovation or do we try to modify specific pieces of law. What we found in the education study was that currently there is a patchwork with a lot of gaps in between. The overall picture may show adequate coverage, but the pattern needs to be considered. Finally, we need to consider the international arena. The laws that we pass now in this country that affect the creation and use of information inevitably conflict or affect our relationships with other countries, because information and information flow is becoming inherently an international phenomenon. Mr. Chairman, over the next few years, your subcommittee has a complex and a very fascinating task ahead of it, and OTA is pleased to help in any way it can. Even though I was asked to only raise questions, I will try to answer those you might have. Thank you. [The statement of Mr. Weingarten follows:] TESTIMONY OF FRED W. WEINGARTEN PROGRAM MANAGER, COMMUNICATION AND INFORMATION TECHNOLOGIES PROGRAM OFFICE OF TECHNOLOGY ASSESSMENT BEFORE THE SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES OF THE HOUSE COMMITTEE ON THE JUDICIARY NEW INFORMATION TECHNOLOGY AND COPYRIGHTS JULY 21, 1983 Mr. Chairman, it is a pleasure to appear before your Subcommittee today to discuss some of the fast-paced trends in information technology and to help you explore some of the implications of those trends for the legal system that seeks to protect intellectual property. I am the Program Manager for the Communication and Information Technologies (CIT) Program of the Office of Technology Assessment (OTA). I am a computer scientist by training and have spent many years examining the social impacts of information systems, as a college professor, as a Program Director with the National Science Foundation, and, now as OTA's Program Manager for Communication and Information Technologies. I must preface my remarks by pointing out that OTA has not performed a full assessment of information technology and copyright, per se. However, nearly all of the studies undertaken in the CIT Program require that we keep close tabs on technological trends. Hence, in the testimony today I can provide some technological background and raise some important questions and issues that this Subcommittee might consider exploring. A number of OTA studies have touched on the topic of copyright protection, and they have, on occasion, raised intellectual property issues that OTA regards as important and worthy of consideration by Congress. For example, in the report Computer-Based National Information Systems, OTA projected future developments in computer technology and developed a general overview of the relevant policy issues that would confront Congress over the Briefly discussing computer software protection, OTA concluded: next decade. ... the issue of computer software protection appears sufficiently important and unsettled to warrant continued congressional attention." In the report Informational Technology and Its Impact on American Education, we looked to see whether the lack of adequate protection for computer software and data bases might be a barrier to the development of computer-based curriculum. OTA compared and evaluated the use of five basic types of protection: trade secrets, trademarks, patents, the law of unfair Each of these mechanisms appears to protect competition, and copyrights. information to some degree significant limitations. Three specific questions regarding educational software were raised: How should software be protected, while recognizing the competing interests of groups who use software or benefit from its use? How can piracy and the various types of misappropriation of software be better dealt with? How can the incentives be increased for software innovation, TECHNOLOGICAL TRENDS It has become common in the press and popular literature to speak about the new "Information Society" or "Information Age." Whether or not such statements suffer from journalistic exaggeration, we are clearly in the middle of a fundamental transformation of the way information is created, stored, transmitted, and used, not just in our own society, but world-wide. These changes are based on rapid technological advances in both computers and communications which have been brought about by progress in such fundamental areas as microelectronics, photonics, and satellites. These advances are providing us with a vast smorgasbord of new products and services. But change in technology, per se, is only part of the story. Along with technological innovation, we are experiencing changes in the way that technology is used and offered in the marketplace. These changes in industry structure may generate as many public policy issues particularly with - respect to the area of intellectual property as does the technology itself. Both trends must be taken into account. I will concentrate on five areas of change that seem most relevant to the purposes of this Subcommittee: 2. The increasing storage and use of information in electronic form. After briefly describing these changes, I will outline some possible issues and policy questions to which these trends may give rise. |