Ostfeld, David M., Esq., Houston, TX: Letter to Hon. Robert W. Manbeck, Hon. Harry F., Jr., _Assistant Secretary of Commerce, and Letter from Hon. Robert W. Kastenmeier (April 24, 1990) Oman, Hon. Ralph, Register of Copyrights, Library of Congress: 944 949 950 952 953 Gadbaw, Michael, Esq., Dewey, Ballantine, Bushby, Palmer & Wood, Letter from Hon. Robert W. Kastenmeier (April 24, 1990) 955 956 Dunlap, F. Thomas, Jr., vice president, general counsel, and secretary, Intel Corp., Santa Clara, CA: Letter to Hon. Robert W. Kastenmeier (May 15, 1990)... 958 COMPUTERS AND INTELLECTUAL PROPERTY WEDNESDAY, NOVEMBER 8, 1989 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE ADMINISTRATION OF JUSTICE, The subcommittee met, pursuant to notice, at 9:45 a.m., in room B-352, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Robert W. Kastenmeier, William J. Hughes, Mike Synar, Carlos J. Moorhead, Howard Coble, D. French Slaughter, Jr., and F. James Sensenbrenner, Jr. Also present: Michael J. Remington, chief counsel; Judith Krivit, clerk; and Joseph V. Wolfe, minority counsel. OPENING STATEMENT OF CHAIRMAN KASTENMEIER Mr. KASTENMEIER. The committee will come to order. This morning the subcommittee is conducting an oversight hearing on computers and intellectual property. Computers are commonplace in government, our homes and offices, and business enterprises. Computers perform a vast variety of tasks, ranging from telephone switchboards to air traffic control, from microwave ovens to automatic teller machines. It seems like only yesterday that a study commission created by this subcommittee-the National Commission on New Technological Uses of Copyright [CONTU]-reported to the Congress on how the then relatively new technology of computer software should be incorporated in this Nation's intellectual property system. In 1979, after a 2-year study, CONTÛ recommended that the copyright law be amended to include computer programs, to the extent that they are original, in the list of protectible subject matter. They also concluded that any legislation enacted as a result of these recommendations should be subjected to periodic review to determine its adequacy in the light of continuing technological change. In 1980, Congress adopted the first part of CONTU's recommendation and expanded copyright law to include computer software as a protectible subject matter. In 1984, however, we declined to "shoehorn" the law any further, rejecting proposals to add semiconductor mask works to the list of works protectible under copyright. Instead, we passed legislation crafted by this subcommittee that created a freestanding or "sui generis" protection of 10 year's duration for mask works. During the past decade, our record of engaging in review of the 1980 Software Act has been somewhat spotty. To my knowledge, however, the hearing today is the first congressional oversight hearing on the subject. In 1986, we did receive an excellent report from the Office of Technology Assessment on "Intellectual Property Rights in an Age of Electronics and Information." The OTA report serves as yellow cautionary light for the intersection of intellectual property law and new technologies. As regards software, it concludes that Congress must proceed carefully and cautiously, since the protection of functional works blurs the distinction be tween writings and inventions. Ten years of time represents several generations of developments in the computer industry. Changes come fast and furious, and to generalists in the Congress, the changing landscape may indeed be difficult to understand. Today we have issues pending before us that would have received scant legislative attention a decade ago, or which were only briefly mentioned then in the OTA report. Software patents are being applied for and granted at an increasing and, some would say, an alarming rate. Does the Patent and Trademark Office have the requisite expertise and access to the broad expanse of prior art in order to make decisions about patentability? Similarly, international intellectual property issues have arisen. Many countries have followed the lead of the United States and, indeed, have been pressured by the executive branch to place software protection under copyright. In March of this year, the United States joined the Berne Copyright Convention which sets minimal standards for member countries to respect. Given our trade negotiations and Berne membership, have we waived legislative flexibility to make necessary modifications to our own law? This hearing is not designed to answer all the questions that might be raised. Its goal is to stimulate debate and to promote understanding, rather than to resolve controversies among competing interests. Before recognizing our first witness, I would ask unanimous consent to insert in the hearing record an OTA staff paper on software technology, which discusses basic software technology, including a brief analysis of software, programs, programming languages, and algorithms. Subcommittee members were previously supplied an OTA staff paper on "Intellectual Property Protection for Computer Software" which identifies questions that Congress might wish to consider in this oversight endeavor. [The information follows:] Software Technology Introduction SOFTWARE TECHNOLOGY OTA Staff Paper on Intellectual Property Protection for Computer Software In this attachment, we will discuss informally some basic software technology. several reasons. First, software is a major topic of interest to computer science, the subject of many books and even entire graduate programs. This discussion, then, is inherently incomplete. Furthermore, because the paper treats in an informal manner some highly sophisticated concepts on which experts don't even agree, it may well not satisfy their sense of precision. Another limitation comes from the currently incomplete understanding of the policy issues. Congress has just begun its overview of copyright and software; and we cannot be certain which concepts will be important in the final analysis and which are not, which concepts must be understood and defined in depth to form a basis for law and which can be treated as intuitive. Hopefully, this piece will merely suggest the need for a deeper examination of the nature of programs, algorithms, and their role in the development of programs. Software Technology What is software? tasks. Computers are machines that are designed to perform a wide variety of "Software" is a generic term that refers to the technology that makes them do specific work. Just as a hand calculator operates only when someone enters numbers and commands for calculating with those numbers, computers also perform their work only when they are provided with sequences of instructions that describe the work to be done. However, unlike hand calculators, computers follow these instructions automatically, reading them from the machine's electronic memory. The ultimate purpose of software, then, is to create in a computer's memory a set of instructions and data to make it behave in a specific way. As the term implies, software is changeable as compared with the fixed nature of the computer's hardware. When it is time for the computer to perform a new job, the old software is moved out and new software brought in. In addition, software is, in some sense, intangible. It can, and does, reside on many different media both before and after being loaded into the computer. In a modern distributed system composed of many computers linked together through data communication networks, software can be in several places at the same time, especially when it is in use. |