STATEMENT OF JACK E. BROWN

Introductory Statement

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.2 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).

2

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 (Austl. 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

share with you my thoughts on the copyright law questions the Subcommittee is studying and various proposals for changes in the

law.

I am particularly concerned that, while in these

hearings other arts and publication media may be the center of attention, sight should not be lost of the effect of the copyright law on the computer and high-technology industries. Although no doubt each member of the Subcommittee is aware of the importance of those industries to our economic well-being, permit me to remind you and others who may hear or read these nearings that the computer software business accounts for a substantial portion of the $270 billion in revenues earned in 1988--more than 5.7 percent of the gross national product of the United States-by the various industries based on copyrights (book and magazine publishing, film production, music and its affiliated publication businesses and computer software creation). The recent Report by the International Intellectual Property Alliance to the United

Copyright Law of June 24, 1985, 1985 BGB1.I 1,137), Japan [Chyosakukenh, (Copyright Law), Law No. 48 of 1978, 2(1)(x)(ii)], Portugal [Code of Copyright and Related Rights, No. 45/85 (1985)], and the Republic of China [Copyright Law and its Enforcement Rules, Republic of China (1985)] in 1985; in Korea [Copyright Law of Korea, No. 4016 (1986)] in 1986; in Singapore [The Copyright Act of 1987 (Nat'l Assembly)] in 1987; in Canada [Bill C-60, 2d Sess., 53d Parliament, 35-36 Elizabeth II, 198687] in 1988; and in the United Kingdom in 1985 [United Kingdom Copyright (Computer Software) Amendment Act of 1985, ch. 1(1)] and in 1988 [Copyright, Designs and Patents Act of 1988, ch.48, § 3(1)(b)].

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International Intellectual Property Alliance, Trade Losses Due to Piracy and Other Market Access Barriers Affecting the U.S. Copyright Industries 1 (April 1989).

States Trade Representative on trade losses in foreign countries estimated that piracy losses suffered by the United States

computer software industry in 1988 in eleven "problem" countries (People's Republic of China, Saudi Arabia, Korea, India, Philippines, Taiwan, Brazil, Egypt, Thailand, Nigeria and Malaysia) totalled $547 million, almost half of the $1.3 billion in losses suffered in the aggregate by the piracy of software, books, motion pictures and records.* The importance of each of the copyright-based businesses in the United States to our economy, contributing over $13 billion in surplus to the United States trade balance in 1988,5 is worth bringing to the forefront of our attention when we consider any change to the effective operation of the copyright law.

I would suggest in particular that we appreciate fully the extent to which the creation and distribution of communication 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 businesses affected a high degree of freedom to devise and implement their own contractual arrangements.

I.

MORAL RIGHTS OF AUTHORS

The first subject concerning which I would essay a

brief comment in light of that thesis is the proposal sometimes made for enactment of a federal law of so-called moral rights-the term derived from the French law--for authors. Those rights are generally defined as the right to disclose a work--a right that is already protected by the copyright laws--and the rights of paternity, integrity and withdrawal."

Some students in the field have concluded that "substantial protection" is available for the equivalent of moral rights under various provisions of American statutory and common

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See generally Leiser & Spiessbach, Artists' Rights: The Free Market and State Protection of Personal Interests, 9 Pace L. Rev. 1, 7-15 (Winter 1989); Note, Artists' Rights in the United States: Toward Federal Legislation, 25 Harv. J. on Legis. 153, 156 (1988). Paternity refers to the author's right to have his name affixed to any reproduction of his work, as well as to preclude his name from being associated with work not of his creation. Integrity is the right to prevent others from altering, mutilating or distorting the creation without the creator's permission. Withdrawal is the right of the author to take back his work if it no longer represents his artistic vision. Such protection oftentimes is said to "give legal expression to the intimate bond which exists between a literary or artistic work and its author's personality." Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 Am. J. Comp. L. 465, 465 (1968), quoted in Note, Moral Rights and the Realistic Limits of Artistic Control, 14 Golden Gate U.L. Rev. 447, 449 (1984).