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introduction of great uncertainty and unpredictability into our law. Uncertainty and unpredictability are surely a common feature of our legal system. But I believe that we should be reluctant to introduce them into cultural and entertainment industries that are flourishing, that are attracting investment and providing u.s. artistic leadership in the world, and that touch upon concerns for free expression and creativity at the core of our constitutional and social system.

This Subcommittee and its counterpart in the House of Representatives, as well as the Congress generally, reached the conclusion, in connection with the enactment of the Berne Convention Implementation Act of 1988, that the United States already accords rights equivalent to moral rights through various existing state and federal laws. I share that view. I believe that the most worrisome abuses of authors' and artists' rights can be rectified through our laws of unfair competition, contract, defamation, privacy, trademark, copyright, and artists' rights statutes in now ten states. It is true that even the totality of these u.s. counterparts falls short of the most far-reaching applications of moral rights theory abroad. But I believe that the limitations in these u.s. laws comport with our obligations under the Berne Convention and, as just noted, that they are on the whole satisfactory if not indeed beneficent as a matter of public policy.

In conclusion, I would note that most of the criticisms I have expressed in this statement with regard to comprehensive moral rights legislation do not apply within the sphere of concern of s. 1198, the Visual Artists Rights Act of 1989. That bill would bar the physical distortion, mutilation or destruction of what might be called singular works of art (as distinguished from mass-produced works, commercially oriented works, and works made for hire). The works of art protected by the bill do not emerge from a commercial setting ak in to that described above in the film and publishing industries: art works are the product of individual inspiration and not collaboratively produced under entrepreneurial supervision, their principal economic value typically rests in their singular manifestation and only rarely in their exploitation in derivative forms and subsidiary markets, and there is typically lacking any kind of elaborate network of contractual relationships that surround the production and marketing of the work. The kind of conduct that the bill would forbid rarely has any redeeming social value or artistic purpose. As Senator Kennedy stated upon introducing s. 1198: "This bill addresses a narrow and specific problem -- the mutilation and destruction of works of fine art which are often one-of-a-kind and irreplaceable." As Senator Kasten said: "Works protected by this bill are one of a kind or very limited editions. When these works are altered or destroyed, they are gone forever. We have a duty to protect them.

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The kinds of works protected by s. 1198, and the kind of conduct it proscribes, all contribute to making a strong claim for this type of moral rights legislation; enactment would have far fewer negative ramifications than I have outlined above regarding more comprehensive moral rights legislation. The fact that artists' rights laws already exist in ten states including those with greatest importance to artists and to the institutions that support the art market and art world -- provides further support for the contention that federal artists' rights legislation will provide valuable uniformity while working very little disruption in existing commercial practices.

Senator DECONCINI. Thank you.
Mr. Brown.


BAIN, PHOENIX, AZ Mr. BROWN. Senator DeConcini, Senator Hatch, members of the committee, the concern that I would particularly express today is that while in these hearings the visual arts are the center of attention, or may be, sight should not be lost of the effect of copyright law on other works of creative endeavor, and particularly the computer and high technology industries, with which I have some familiarity.

I would suggest in particular, endorsing Professor Gorman's statement which I just heard, that we appreciate fully the extent to which the creation and distribution of informational and artistic materials is dependent on economically viable business arrangements. The optimum business arrangements, both in terms of economics and fairness, I would submit, are best attained in almost all cases by allowing participants in the affected businesses a high degree of freedom to devise and implement their own contractual arrangements.

On the first subject of moral rights-and I would like a moment also to address the question of the author's rights under the provision of the copyright law providing ownership with respect to works made for hire, if I may-on the first subject of moral rights, I would suggest that those who propose the enactment of a Federal law to create some new author's rights that would not be recognized by the combined property/tort/commercial/unfair competition laws, as presently envisioned by our State and Federal courts, should carry an extremely heavy burden of persuasion. Each particular industry needs to be analyzed in terms of its own organizational structure and imperatives, but let me focus on two facts of interest in connection with the computer industry which may well have their equivalent in other copyright-based informational and cultural industries.

First, computer programs today most often are the product of relatively long periods of gestation by numbers of people working in teams, sometimes as employees of the company engaged in develop ment work and sometimes not. Perhaps you noticed in Sunday's New York Times that the personal computer software industry is increasingly writing programs by piecing together segments of code, utilizing the technique called object-oriented programming.

Second, computer programs are not finished products when they are first issued. If there is a program that has been written without a single bug at the time of its first issuance, I have not heard of it. Bugs are discovered during the course of actual use and consequently, the common experience is to issue “bug-fixes” in the form of updates or enhancements in regular course.

The notion, consequently, of a static work which an identifiable single author who may which to preserve in its pristine form simply doesn't fit the realities of an industry like the computer industry and, I suggest, perhaps some others.

Recognizing the commercial realities, Japan specifically adopted an amendment to its copyright law that, as one commentator has said, effectively abolishes moral rights in connection with computer products.

Perhaps even more telling, France-generally regarded, as Professor Damich has mentioned, as the birthplace of moral rightsamended its copyright law in 1984 to provide, in effect, an exclusion from moral rights for computer programs.

Now, qualifying a work as a “work made for hire” under copyright law is, as I indicated earlier, a related subject in that it is the determinative test for the purpose of determining authorship and copyright ownership in many cases. Two problems emerge, as to which I would offer a short comment.

First, there is a fair amount of uncertainty as to when a hired party may qualify as an employee under the general common law of agency, making the employer the author and the owner of the copyright for the work produced. The recent Supreme Court decision in the Reid case set forth a non-exhaustive list of factors relevant to that determination, listing 13 items, not one of which the Court said was determinative.

Incidentally, Senator DeConcini, a measure of the alarm with which the current situation is viewed may be seen from the article in the New York Times, reprinted in the Arizona Republic, under the headline "Copyright Ruling Could Cost Firms Billions.”

Now, the problem is exacerbated by the fact that if it is determined that a work was not prepared by an employee within the scope of his employment, the hiree gains an inalienable right to be considered an author of the work. I have a very simple and preliminary suggestion in that regard, to make it clear by adding the term "computer program” to the list of categories of works that are within subparagraph (2), which will provide clarification that you can have those rights-you can have an arrangement between a contractor and someone commissioning a work that provides for the person commissioning the work to be treated, in effect, as an employer, and the work then treated as a work made

Senator DECONCINI. Mr. Brown, can you please conclude?
Mr. BROWN. I just did.

[The prepared statement of Mr. Brown and responses to additional questions follow:

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I am a member of the firm of Brown & Bain, with offices

in Phoenix, Arizona and Palo Alto, California.

A significant

portion of the practice of my firm in recent years has related to the protection of intellectual property, particularly advising companies engaged in the computer and semiconductor industries

and related industries, as well as print and broadcast media.

Although patent protection is increasingly sought for computer programs (in the form of method or design patents),' copyright law has been and remains the favored means for the protection of

computer programs and computer screen interfaces (in the form of

audiovisual works) in the United States and also in other

nations.? Thus, I have a general interest in and am pleased to

See generally Anthony & Colwell, Litigating the Validity and Infringement of Software Patents, 41 Wash. & Lee L. Rev. 1307 (1984); Sumner & Lundberg, The Versatility of Software Patent Protection: From Subroutines to Look and feel, 3 Computer Law. 1 (June 1986); Bender, The Case for Software Patents, 6 Computer Law. 2 (May 1989); Lastova & Hoffman, Patents: Underutilized Leverage for Protecting and Licensing Software, 6 Computer Law. 7 (May 1989).


See Brown, Recent International Trends in the Legal Protection of Computer Software, 2 J.L. & Tech. 167, 170-71 (1987).

Copyright statutes recognizing the copyrightability of computer programs were enacted in the United States [Pub. L. No. 96-517, 94 Stat. 3028 (1980)] in 1980; in Hungary (19 Copyright Law of Hungary 316 (1983)) in 1983; in Australia (Copyright Amendment Act, No. 43 (Austi. 1984)) and India (The Copyright (Amendment) Act, No. 65, 35 A.I.R. 919 (1984)] in 1984; in France (Law. No. 85-660, arts. 1 & 45-51, 1985 J.O. 7495ff), Germany (Law on the Amendment of Provision of Rules in the field of

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