I think the same is true of music. You don't pay less to go to hear Tchaikovsky than to hear Aaron Copland; so I think that has been the experience both generally in copyrights and in specific design areas. In most industries you are not talking about true monopolies. In certain industries that may be true, but we did not find that during the hearings or any of the other explorations. We did find that it tended to be the small innovative manufacturer and designer who sought protection.

Mr. KASTENMEIER. I have used up my 5 minutes. I call on the gentleman from California, Mr. Danielson.

Mr. DANIELSON. Thank you, Mr. Chairman.

Would you please tell me how the design section would promote the progress of science and the useful arts?

Mr. LATMAN. Yes, Mr. Danielson. I believe it would in the sense of stimulating and providing incentive for creativity in many fields in this country in which we, I believe, have gotten used to playing second fiddle to other countries. I think, for example, of the allure of Scandinavian modern furniture or of English bone china or of other areas in which the designer in foreign countries is better protected than he is in this country. I certainly don't think there is a lack of talent here, but I think

Mr. DANIELSON. I am not thinking about there, but I am thinking about our basic law, the Constitution. Sweden does not have the U.S. Constitution. I am only thinking in that context.

Mr. LATMAN. Well, I think that just as the basic constitutional concept is to provide economic incentive to creators and producers of copyrightable material, the same philosophy should guide

Mr. DANIELSON. Only to the creators of copyrightable material. It says authors in the Constitution.

Mr. LATMAN. Yes. That certainly is true. It would be the creators, but in order to make their economic tool valuable, they have to have the right to exploit it and market it through producers. But I certainly agree with you. The Constitution says authors and this bill does protect the designer, the creator. And I am saying that the same philosophy as enunciated by the Supreme Court in the Mazer case; namely, that science and the useful arts can best be promoted by granting economic incentives, that is how that clause was interpreted.

Mr. DANIELSON. I don't doubt that is the purpose. In fact, that is our only purpose, to protect--to promote the progress of science and the useful arts.

Mr. LATMAN. I agree, but the Supreme Court said the method the Founding Fathers picked to promote is to grant copyrights, patents, and related works.

Mr. DANIELSON. Where did the Founding Fathers say we provide the right to protect

Mr. LATMAN. It did not say it just as you say it. I think the question should be whether you feel there is a need for creativity and incentives for creativity. But let me say this, Congressman. I think that in certain areas, as I indicated earlier, copyright and patents do cover and sort of overlap and in certain cases grant too much protection. So I think that to the extent that one is concerned that the constant expansion of the copyright concept of works of art-because, after all, what are we talking about in design? We are talking about fur

niture. We are talking about silverware. We are talking about lighting fixtures. Some of this material may end up getting protected under copyright, in which case I submit there will be too much protection.

So what I am saying is that this bill is an attempt to promote the progress of science in useful arts by taking a moderate middle ground and therefore trying to protect designs that deserve protection, but to protect them in a moderate equitable way.

Mr. DANIELSON. The impression I get, my perception from your presentation, which is quite scholarly, is that design is hard to fit under patent law. An application for a patent is often turned down because of the lack of either novelty, inventiveness, or unobviousness. And you have to make a search first and a search is awfully difficult when you are talking about just a few little variations in the ornamental qualities of something. So you feel that since-you even stated in your statement that frequently patents are turned down on design. So let's move over into the field of copyright. Maybe that would be easier. In effect, that is the bottom line of your presentation here and I would just like to know-it might be something real desirable, but how do you justify that in light of the Constitution?

Mr. LATMAN. Well, I have to respectfully modify, if I may, one of the terms you used. It is not-we are not moving over into copyright. We are moving in between. We are closer to copyright and I know we are getting a little metaphysical on this.

Mr. DANIELSON. We don't have a thing called a patent right. We have copyrights and patents.

Mr. LATMAN. We can. In other words, the Constitution does not use the words "patents" or "copyrights." It says you can protect writings and inventions. There have been two devices that Congress has so far used. One is called the copyright, one is called the patent. There have been scholarly writings on this very subject of the design bill which show it is writing; it can be considered a writing. Therefore, what I am suggesting is the best thing is not to move all the way over to copyright. I think that is almost as bad as sticking all the way over in patents, but I think the best thing to do is get the inbetween protection and that is what took about 10 years and I am not suggesting you accept it on faith. I am just saying that is what took 10 years and the kind of testimony I referred to earlier will show you, testimony of the designers and others who indicated the need for protection. Mr. KASTENMEIER. The gentleman's time has expired. The gentleman from Illinois, Mr. Railsback.

Mr. RAILSBACK. I am going to pass, Mr. Chairman.

Mr. KASTENMEIER. The gentleman from New York, Mr. Pattison. Mr. PATTISON. I just have one question. We have this constitutional provision, but suppose there was no such thing in the Constitution. Suppose there was no language in the Constitution at all. We could still enact what we know as copyright and patent laws, couldn't we? Mr. LATMAN. I imagine you would have to link it to another congressional power such as interstate commerce, perhaps, yes. Mr. PATTISON. But on that, for instance

Mr. LATMAN. Yes, which effectively I suppose would do the same, but this really comes from the same philosophy. When you think that Mazer v. Stein, Supreme Court case in 1954, involved a human figurine used as a lamp base and there were cases all over the country and the

circuits were splitting, on is this art, is it utility, is it functional, could you get a design patent for it, and if you can get a design patent, does that preclude copyrght? These were the kinds of questions and the Supreme Court in this very same case talked about the economic incentive that I mentioned to Congressman Danielson a moment ago, upheld copyright in that lamp base.

Now, all the philosophical questions that have been raised this morning in that sense were answered with respect to this human figurine. I am not that familiar with the subcommittee's rules, but I see the Congressman shake his head, and I would love to answer him. Mr. DANIELSON. If the gentleman would yield, I want to make it clear I do not agree. The Supreme Court has been working with a 1909 law. They have been doing the best they can to improvise. We hope to give them a new law in the future, so I just simply don't-my philosophical doubts have not been answered.

Mr. LATMAN. Except, Congressman, the Supreme Court at that point was construing the Constitution. I agree with you. And I have been privileged to have experience with some of these issues such as photocopying which have crossed against the 1909 act, but I don't think this one does.

What I am saying is, suppose instead of the human figurine that you had in the Mazer case, you had a very modern, Howard Miller or Lightolier or-I am just thinking of some of the companies-functional type looking design which nevertheless was ornamental in the legal sense. The Copyright Office says Mazer v. Stein doesn't fit that and yet the Copyright Office-and I gather it has been part of their historical support of this bill-says that they don't think that a distinction should necessarily be made as a matter of legislative policy between something that happens to be representational, such as a human figurine used in Mazer against Stein, and a more sleek modern look which they don't think comes under works of art, but which they think is equally entitled to protection. But the protection that would be obtained, I must suggest again, is a short-term focused, limited type of protection. But I do think that the Constitution justifies such enactment and I do think that the policy justifies it.

Mr. PATTISON. I just want to follow that question a little bit because my point is that it would appear to me that the constitutional provision is not a limiting provision. It says that the Congress shall have the authority to do this, to grant protection for this purpose. But I am not at all sure that that is anything more than a suggestion by the framers of the Constitution that that is something the Congress might want to do, and I am not at all sure that that limits us to those particular-the particular words of that constitutional provision. Maybe I am wrong about that. Is it limiting or can we simply enact any kind of protection law that we want to for unuseful things?

Mr. LATMAN. Well, I think that in order to enact protection for useful or unuseful things it would have to either be a writing or a discovery. Those are the two words that the Constitution uses.

Mr. PATTISON. So that you are saying the Constitution does limit our powers.

Mr. LATMAN. I think I would have to say yes, Congressman, that it does, but I don't think there is any question, and there have been some scholarly writings on the subject, that the material we are talking about

would fit in either as a writing or potentially as a discovery and I cited Mazer against Stein to say that a lamp in that case was held by the Supreme Court to be a writing.

Mr. PATTISON. Yes, but obviously other countries don't have that provision. I would think we are probably unique in having that provision in our Constitution. Other countries have been able juridically to enact copyright laws and patent laws, so absent that provision in the Constitution, obviously we could enact any kind of copyright or patent law we want to, whether it was for works of art or phonorecordings, or anything else that new technology has brought along. So that-my question is, does that in fact limit us to those particular points?

Mr. LATMAN. I suppose my answer would be in fact it does not limit you. Potentially the language could limit you, but I don't think it limits you in what you have done in phono recordings, and so forth, and I don't think by any means it would limit you in protecting designs.

Mr. PATTISON. Thank you.

Mr. KASTEN MEIER. The gentleman's time has expired. The gentleman from California, Mr. Wiggins.

Mr. WIGGINS. I pass.

Mr. RAILSBACK. May I ask a question?

Mr. KASTENMEIER. The gentleman from Illinois.

Mr. RAILSBACK. The Justice Department seems to be opposed primarily because of those provisions which relate directly to the United States. In bringing action against the United States in the Court of Claims, what is their objection, the Justice Department's objection?

Mr. LATMAN. Well, in fairness, I think their objection goes beyond that. They do mention that and they spend a lot of space talking about that provision, but I think it goes beyond it. It is, if I may say with due respect to the Department, a fairly standard response that they have given to this problem for many, many years. I think it does not carefully analyze either the need or the provisions of the bill. I think it is a broad gaged shotgun type of opposition to this type of bill.

As I indicated, I think most of the arguments have been answered throughout the hearings, and I don't recall, for example, anyone from the Justice Department ever being much more specific or ever, I believe, testifying in person against the bill. It is a fairly standard response. But in fairness, I think it goes beyond, Congressman, the Government-suit against the Government.

Mr. RAILSBACK. It may, but they certainly don't make it very clear. They seem to recite all of the provisions of title II and then they say of particular importance is the revision proposed for title 28, U.S.C., 1498 (a), to provide that whenever a registered designer invention is used or manufactured by or for the United States without license of the owner thereof, the owner's remedy shall be by action against the United States in the Court of Claims, and then they go on to extensively discuss that.

What I am wondering is are they objecting to the concept of a kind of in-between remedy, between patent and copyright?

Mr. LATMAN. In fairness, I think they are. I think they are.
Mr. RAILSBACK. I see.

Mr. LATMAN. I think the reason, if I may suggest, it comes across to you the way it does is quite justified because I don't think they

indicate really the basis of such opposition or any kind of detail or policy.

Mr. RAILSBACK. Right.

Mr. LATMAN. Kind of blanket statement that is lost within the rest of the discussion.

Mr. RAILSBACK. All right.

Mr. LATMAN. And I do suggest that this has been a historic thing. It has been counterpoised through the years by the Commerce Department, the Library of Congress, in support of the bill.

Mr. KASTENMEIER. The Chair will announce that a notice quorum has been succeeded by a live quorum. In order that those members who are here may attend and record their presence on the floor, we will not recess for quorums. We will recess for votes.

I have one or two other questions because this is an important subject. It is a subject which would otherwise have been entitled to definite consideration as separate legislation.

First, the Office of Administrator in the bill doesn't locate that Administrator. In fact, it doesn't really identify the Administrator other than to say the Administrator and Office of the Administrator referred to in this title such be such officer and office as the President may designate. We don't know whether-this individual is not referred to as an Administrator for design patents or ornamental designs or anything else. Should the Administrator be further defined in terms of function, do you think?

Mr. LATMAN. I would think that could be a healthy thing. Are you asking, Mr. Chairman, whether the Administrator should be identified in the bill as a particular official?

Mr. KASTENMEIER. The only identification is that there is an Administrator and Office of the Administrator. Presumably in practice, if created, the Administrator will have to be further identified.

Mr. LATMAN. Well, I think there were always considered four mathematical possibilities, but only two realistic ones, and maybe I should address myself to those. The four mathematical possibilities are the Copyright Office, the Patent Office, some other existing

agency

Mr. KASTENMEIER. Such as the Department of Commerce.

Mr. LATMAN. The Department of Commerce or some new agency, and quite early in the game legislators indicated that didn't seem to be too realistic a proposition for this small problem.

I would say if the committee chose to designate the Copyright Office or the Patent Office, the Register of Copyrights or the Commissioner of Patents, I think that might be a healthy thing in the bill and, as I indicated, the Senate Judiciary Committee suggested it be in the Patent Office. I think there are strong arguments both ways that I think it would require probably consultation with the two offices in terms of budgetary needs, which was done, incidentally, at the last Senate hearing. It was on the basis of that kind of analysis that the Patent Office was able to indicate its receptiveness.

Mr. KASTENMEIER. I would only observe that perhaps the Senate would not necessarily take the point of view that the House has in recent years. It is certainly on the floor to be viewed very critically, as the creation of a new Federal bureaucracy, in terms of function, cost, and the like. Any such measure once it got to the floor would be subject to very severe scrutiny by the House as a whole.