Mr. PATTERSON. Well, one practical difference I see is that under the current statute you have doctrine of fair use. You have five rights, exclusive rights of copyright proprietor. The application of those five exclusive rights is not necessarily appropriate for a semiconductor chip, as I see it. I think that the major practical difference is that the courts are going to give varying interpretations of the statute relative to semiconductor chips because of the ambiguity in the concept of copyright. I think that one thing that could be done, for example, would be to design more appropriate remedies under an industrial copyright statute that are not appropriate for traditional copyright. Mr. SAWYER. Such as what? Mr. PATTERSON. Well, I think that there is a good basis for arguing that you could have a qui tam-type remedy for an industrial copyright statute. That goes back to the early English copyright statutes which did contain a qui tam remedy and the 1790 American Act, which contained a similar qui tam-type remedy. Now, the problem as I see it here- Mr. KASTENMEIER. You might, for the benefit of the committee and others, explain what qui tam▬▬ Mr. PATTERSON. This in common law was an action whereby a private individual was authorized to bring an action and share the recovery with the Government, even though that individual was not directly affected by the wrong which had occurred as a result of the statute. Now, I say a qui tam-type remedy in this sense: It seems to me that the major problem we are dealing with here is industrial piracy, and I see no reason why an industrial copyright statute could not provide that the United States, by a U.S. attorney, would be authorized to bring actions on behalf of private individuals whose industrial copyright had been infringed, with the result that half of the recovery would go to the U.S. Treasury. Mr. SAWYER. Why would we want to do that and (a), why would we want the United States to come in to protect a private property right; and (b), why would we want to give part of the recovery to the United States? Mr. PATTERSON. Well, to answer the second part of your question first, the answer there is to benefit the United States. Mr. SAWYER. Deficits? Mr. PATTERSON. Yes, sir, to encourage U.S. attorneys to do this sort of action. Mr. SAWYER. If some individual is harmed, obviously the United States doesn't have to come in and protect him. I am sure he would be interested in protecting himself, as it would be his interest that would be involved. Mr. PATTERSON. Well, that I think, sir, is the question. I am assuming that we do have a major problem in which there is a large public interest. You know, I am not really putting forth this idea as something that should be done, but I think it is an example of a new approach to a problem which could be considered. Mr. SAWYER. Well, I have some sympathy with the idea that we are trying to stretch copyright law that was originally designed to protect printed media in all its terms into covering electronic 30-425 0-84--5 media and covering things like chips and designs. I really think we seriously ought to back up. I don't know as I am in agreement with some of the specifics of what you are suggesting, but I wonder whether we shouldn't back up and tailor some totally different statutes leaving the existing one for the printed media which it was designed for, instead of starting to spring it into covering everything else. Why not start anew and create one for the electronic mess that we are in between the satellites, and cable, and broadcasters, and producers, and what not. We could create a new one that does not try to adapt print media law to that problem, and perhaps on designs and chips, go to something that amounted to a kind of unfair-competition-type copyright statute, if you will. I am sympathetic with the idea and I have been fretting with that since I have been involved with this. Thank you. I yield back my time. Mr. KASTENMEIER. The gentlewoman from Colorado. I guess I want to go a little further and see if I can figure out the constitutional validity of what we are talking about here. Do you think a mask work would be considered a writing? Mr. PATTERSON. For constitutional purposes I think that the courts would uphold the constitutionality of House bill 1028. I say that on the basis of history, on the basis of what the courts have done in the past, and I cannot see any real basis for the courts striking down this particular bill on constitutional grounds. Mrs. SCHROEDER. So, in other words, you are not arguing on a constitutional basis that we shouldn't proceed in this manner? Mr. PATTERSON. No, ma'am. Mrs. SCHROEDER. You are doing it more on a utilitarian basis? Mr. PATTERSON. Utilitarian basis and, frankly, an interest in what I would characterize as the integrity of the copyright law. Now, I realize the consistency for its own sake has very little merit. I think it is very important here to have consistent principles for the purpose of administering and interpreting the statute. Mrs. SCHROEDER. Who would you have administer an industrial copyright? Mr. PATTERSON. I think the Copyright Office. Mrs. SCHROEDER. You would have the same group? Mr. PATTERSON. Yes; the Copyright Office could do that. Mrs. SCHROEDER. And the remedies you said could be different, and I heard you say the 10 years. The United States would share part of it, maybe. Are there other remedies that you are for that haven't been articulated? Mr. PATTERSON. I frankly have not given that much thought to it, Mrs. Schroeder. I am confident that it would be appropriate to provide other remedies, and don't let me give you the impression I am suggesting a qui tam remedy or qui tam-type remedy. I am merely suggesting that is the type of thing that could be considered. Mrs. SCHROEDER. One of my problems is that if you think that proceeding down this way is constitutional, and you would still do the industrial copyright but have it administered in the same office, then we would not run a risk that you would spend years in the courts trying to decide which were more like industrial and which were more like author-type copyrights, and if you had different types of remedies, obviously it would be very, very useful to try to get things under the 10-year provision rather than the author provision. Wouldn't we create a new can of worms? Mr. PATTERSON. Yes; I can see that problem and I think the answer to that problem is going to be in how the legislation is drafted. Mrs. SCHROEDER. I am not sure any of us have Solomon's wisdom. That is how we got here to begin with. Mr. PATTERSON. I can agree, and I contend that if we go back to fundamentals, that it is possible to do this and to make it clear to the courts that the principles upon which the industrial copyright is based and the principles upon which the author's copyright is based are different. Mrs. SCHROEDER. Do you think we in the Congress could do that? Give us an insurance policy and we won't mess it up more. We may be writing an attorney's relief bill. Mr. PATTERSON. I have great faith in Congress, and let me say that I think the 1976 Copyright Act is basically a very good act and the persons I fault in that are not Members of Congress, or the copyright bar. The persons I fault are the scholars and writers, the people who are supposed to develop these ideas and present them to Congress, I think legal educators have been very remiss in this area. That is where the real fault lies. Mrs. SCHROEDER. Thank you. Thank you very much. Mr. KASTENMEIER. The gentleman from Kansas, Mr. Glickman. Mr. GLICKMAN. No questions. Mr. KASTENMEIER. Mr. Berman. Mr. BERMAN. I am confused by which you view as this public protection notion and the author protection notion as contradictory, particularly as applied in this situation. Why couldn't it be viewed that by protecting the author or designer or creator that there is a derivative long-term benefit to the public and that there is nothing inconsistent with those two notions. The benefit obviously being that more people are encouraged to use their creativity if they can reap some financial rewards from it? Mr. PATTERSON. If I understand your question, Congressman Berman, why do I say we have a problem conceptually in terms of copyright? That really goes back to history. I think that when you are talking about drafting legislation or interpreting legislation, that the fundamental principle on which you are operating is very important. In the case of the copyright law, there have been two contradictory principles. One is that copyright is to protect the interest of the author. The other is that copyright is to protect the interest of the publisher. Mr. BERMAN. Publisher, not the public? Mr. PATTERSON. Publisher, yes, the entrepreneur, and this again is because copyright originally was a publisher right. Mr. BERMAN. I thought you said it was to protect the public. Mr. BERMAN. Forget the question. Another question-you make the distinction somewhere that it is one thing to give the copyright owner the exclusive right to print, reprint, publish, and vend a book. It is quite another to give him in addition the exclusive right to copy the book. Mr. PATTERSON. Yes, sir. Mr. BERMAN. Why is it quite another thing? Mr. PATTERSON. Well again, let me go back to history, Congressman Berman. The original copyright statute, the 1790 act, gave the copyright owner the exclusive right to print, reprint, publish, and vend the work. Now, until the 1909 act, those were the only exclusive rights in conjunction with literary works. The effect of that was to say that one who copied the work for the purpose of printing and selling it, infringes the copyright, but when Congress in 1909 added the exclusive right to copy, those limitations were no longer present. That is, the exclusive right to print and publish a work is not quite as broad as the exclusive right to copy a work, because as an individual, I might very well copy the work, but I am not going to print it or publish it or vend it. So in that sense, Congress enlarged the scope of the copyright monopoly, and my own personal view is that Congress was not aware of the implications of the change, and I think this is indicated by House Report 2222 on the 1909 Copyright Act. What Congress did was simply take the exclusive right to copy, which had been added in the 1870 act in connection with statuary and designs of fine art, and made it applicable to all copyright works without realizing the implications of that change. Of course, the change did not become significant until the advent of Xerox, whereby an individual could copy an entire book without any great difficulty. This I think created one of the problems that Congress had difficulty with in the 1976 act. Now, I argue here that if you had not been viewing copyright as an author's right, or if Congress had not been viewing copyright as an author's right, there was no real justification for the addition of the exclusive right to copy. This is simply an example of what I think is a result of a confused concept of copyrights. Mr. BERMAN. Thank you. Mr. SAWYER. Well, if we went to design protection or something called design protection, would there be any implications, do you think, from a precedent standpoint for other areas that seek similar protection, such as typeface and industrial designs and all the others? Mr. PATTERSON. Yes, I do; I think there would be that implication. I think this would be opening the door. As I said, the semiconductor bill, I think, is merely a pilot project. That is why it is so important and so significant that Congress be absolutely sure of what is being done here. Mr. KASTENMEIER. But in any event, as relates to term of protection, there would be very little justification for conferring terms such as life plus 50 or 75 years in such a fast-moving technology. Mr. PATTERSON. Yes; I fully agree with that. That is one of the reasons for going to what I would contend should be the industrial copyright. Mr. KASTENMEIER. Well, in conclusion, I must say I think I agree with your essential analysis. It is directed in part to this committee and myself. I participated obviously in the period 1965 to 1976 when we wrote the copyright law, and I think, from your own analysis, we tended to make the copyright law a huge tent to cover all proprietary conflicts which it was really not, as you point out, equipped to cover. Even though we had, I think, marvelous people advising us, very often they inadvertently degraded the copyright law in the sense that you describe it. Mr. PATTERSON. Yes. Mr. KASTENMEIER. I say inadvertently, because I think what they had in mind was enlarging it to cover other areas; in making the law more pervasive they sensed more importance in copyright, when perhaps that should not have been our purpose at all. Mr. PATTERSON. Yes. Mr. KASTENMEIER. We should have found other means to resolve some of these things. As you point out, it may be too late now to reconcile the contradictions. Now we cover NFL football games, as though they were a writer's creation. They are not. Mr. PATTERSON. Yes. Mr. KASTENMEIER. And a great deal of other material which I think makes a mockery of what copyright was intended, certainly originally, as far as its concept, to cover. In any event, we are indebted to you, Professor Patterson, for your appearance this morning. We may again call upon you for some help. Mr. PATTERSON. Thank you, Mr. Chairman. Mr. KASTENMEIER. I would now like to call a very distinguished witness. Indeed, we consider him a friend of the committee, a person who has been a witness before this committee many times. He is the Assistant Secretary of Commerce and the Commissioner of Patents and Trademarks. He also chairs the Working Group on Intellectual Property, Cabinet Council of Commerce and Trade, of the White House, he is one of the most thoughtful people in or out of Government, not only on this issue, but many, many others obviously in his own field. So I am very pleased to greet Mr. Secretary, Gerald Mossinghoff. TESTIMONY OF GERALD J. MOSSINGHOFF, ASSISTANT SECRETARY OF COMMERCE AND COMMISSIONER OF PATENTS AND TRADEMARKS; CHAIRMAN, WORKING GROUP ON INTELLECTUAL PROPERTY, CABINET COUNCIL ON COMMERCE AND TRADE, THE WHITE HOUSE Mr. MOSSINGHOFF. Thank you very much. Mr. KASTENMEIER. You may proceed as you wish. I see you have a short statement. Mr. MOSSINGHOFF. The first two pages of my statement generally summarize the economic case that can be made and what the situation is. So if we could put my formal statement in the record, I will begin at the bottom of page 2 and summarize the actions of the Cabinet Council and the position of the administration on the bill. |