might be protected under copyright, whereas it is something that facilitates the user interface and is something that all people who are writing programs for a particular function would like to use. Now, what's the difficulty in this? I think the courts are going in this direction because they are trying to provide equities and compensation which is not provided under the copyright law and because many of these forms of computer software may not be patented because they are more incremental than novel. But if programmers are required to make something that is different, that increases the diversity of the types of programs that appear for a particular user group. The users, on the other hand, find it far more comfortable to use a similar interface or a screen display. In migrating from one level of software to another, uses don't want to have to learn a whole new system. There's nothing more frustrating than having a can represent a storage capacity in one program and garbage in another, so that you save your data in one and throw it out in the other. There's a good example in the difference between the dictionaries of WordPerfect and PFS Write. In one program the number 1 skips to the next word and ignores it, and the other one puts the word into the dictionary. You inadvertently do something you didn't intend, because the different programs are pushed in the direction of increasing the diversity. The question is not whether copyright principles can be applied but whether they should be applied and how can we best encourage user-friendly, compatible human interfaces which enhance the productivity for that particular sector of the economy, whether it be word processing or financial management or medical care or whatever. Now, you will be told by eminent and well-intended lawyers and scholars that, if the system is not broken, why try to fix it? Well, the system may not be broken, but it certainly doesn't fit the new technologies of artificial intelligence, of databases, of laser disks, computer-assisted design, computer-assisted manufacturing, video digitizers and so on. The intellectual property laws are really bursting at the seams with new technologies with which we can find analogies, which almost but do not quite comfortably fit. It's like wearing the hand-me-down clothes of older brothers and sisters. And that may be appropriate for a third world country, which we seem to be determined to become. It is not appropriate for the leading economy of the world. The best answer I have found for not forging new laws, or modifying existing ones, is that our lawyers are comfortable with the old ones and that the Berne Convention might not apply if we called our laws something other than copyright. Well, I think that we who have the longest experience and largest investment in software should be leading the world with a better fitting legal regime, as we did through the leadership of this committee and the chairman in the protection of mask works or semiconductor chips, rather than browbeating our trading partners into accepting second or third best. In summary, computer software is vital to the health of the U.S. economy. It is a treasured asset in improving our competitive advantage in the global economy. Intellectual property laws do not comfortably fit computer software, leaving confusion and contradictions. Adjudications are slow and expensive. They add to the cost of U.S. products in the world market. A simplified, unified, expeditious and harmonized system, both domestically and internationally, would be highly therapeutic. We are highly innovative and pioneering people, and there are frontiers to be conquered in the law as well as in the technology. So I ask you the question: If Congress is not prepared to take the lead, who will? Mr. KASTENMEIER. I suppose the courts would. [Laughter.] Ms. BRANSCOMB. Well, the courts are supposed to refine the law and not make it. Mr. KASTENMEIER. I wish, as a matter of fact, there would be more reliance upon the Congress to settle intellectual property questions. I thank you for that statement. [The prepared statement of Ms. Branscomb follows:] PREPARED STATEMENT OF ANNE WELLS BRANSCOMB, ESQ., RESEARCH ASSOCIATE, PROGRAM ON INFORMATION RESOURCES POLICY, HARVARD UNIVERSITY, AND ADJUNCT PROFESSOR OF INTERNATIONAL LAW, FLETCHER SCHOOL OF LAW AND DIPLOMACY EXECUTIVE SUMMARY November 8, 1989 AND STATEMENT OF ANNE WELLS BRANSCOMB, ESQUIRE PROTECTING THE GOLDEN GEESE OF THE INFORMATION ECONOMY Computer software is essential to almost every sector of an information economy. Therefore, even if it were not also a growth industry contributing substantially to U.S. trade, it would deserve the special attention by Congress. There is a great deal of ferment within the computer software industry about the directions the courts are moving within the current framework of intellectual property law. There are several competing legal regimes into which some, if not all, of the computer software and its constituent parts fall. Attempts to fit round pegs into square holes through extensive litigation adds to the cost of doing business in both the domestic and international markets. Thus users, software providers, and the public coffers would all benefit from a unified, simplified, and harmonized system of legal protection for computer software. Areas of current ferment in the substantive law which deserve attention include (but are by no means exclusive): - or clarification of existing intellectual property laws enactment of a new statute for computer software protection; while patents may provide greater protection for truly novel computer programs, the major innovations in software development are incremental, whereas the courts are extending the coverage of software in a manner which lengthens the protection to a far longer period than would be available under the patent system. - reconsidering the existing intellectual framework for computer software protection; "use" "access" or "service" as a theoretical framework may be far superior to "copy", "invention", or "secret". Copyright is cumbersome as, copying is the very essence of the productivity of computer software. evaluating the right of "reverse engineering" as it applies to computer software development redefining the balance between proprietary and public claims on intellectual assets which computer software represent - reconsideration of the effects of noncopyrightability of government originated software development - reevaluation of the effect of the "first sale" doctrine" There are also elements in the administrative and judicial procedures which can be improved. These include: - the unification of administration of the intellectual property laws which are currently divided between Congress and the Department of Commerce and the states. - bolstering judicial capability with professional expertise in computer software. better access to PREPARED STATEMENT OF ANNE WELLS BRANSCOMB, ESQUIRE BEFORE THE SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY AND THE Chairman Kastenmeier and distinguished members of the committee, may I thank you for the opportunity to present my personal views concerning the opportunities for Congress to improve the protection of computer software, enhance the productivity of the computer software industry, and increase the benefits to the public. I would like to address the following questions: 1) Is a thriving computer software industry important to the U.S. economy? 2) Are there changing circumstances which mandate a new look at the legal protection of computer software? 3) Can the substantive laws governing intellectual property be improved to provide better protection for computer software? 4) Can administrative procedures be improved? 5) Can the judicial system be improved to simplify, expedite and clarify the applicability of existing intellectual property laws to computer software? My answers to all of these is yes. I. WHY IS COMPUTER SOFTWARE IMPORTANT? First, why is computer software important? Because computer software comprises the crown jewels of an information economy. Because all developing nations appear to be progressing toward a preponderance of activities in the information sector, with the United States leading the way. Because the United States is still currently the worldwide leader in the development of both computer software and on-line data bases. Because the computer software industry is one of the most rapidly growing sectors of economic activity in the United States; in employment, for example, with labor engaged in software production growing at a compound rate of 22.5% per year as of 1987-88. With an almost comparable rate of growth of 18.9% in income for 1987, it produces a favorable balance of trade. A strong capability in computer software is essential to most other sectors of the economy. Computer software comprises the instructions which govern computer-aided design of manufactured goods. Computerized communications systems facilitate the transfer of instructions, orders, inventory control, even diagnostics -not only for manufacturing firms but for service institutions as well. Anne W. Branscomb/Computer Software/November 8, 1989 1 Such rapid and sophisticated communications permit us to deal effectively in an increasingly global marketplace. Our banking systems are dependent upon what Walter Wriston has called the "information standard". Computer software is critical to the takeoffs and landings of air carriers. News and entertainment are enhanced by complicated computer assisted graphics. Administrative processes are expedited by computerized records systems; and administrative decisions improved through the use of modeling techniques. Indeed, computers also play a crucial role in the design of buildings and computer chips and even the operating systems of computers themselves. To wit, computer software is the oil which lubricates the wheels of commerce, industry, management, and government. Indeed, the analogy to the "golden goose" is not ill conceived. Computer software constitutes the predominant intellectual asset of the computer age which is essential to the productivity of the economy. II. WHAT CHANGING CIRCUMSTANCES MANDATE A NEW LOOK AT LEGAL PROTECTION FOR COMPUTER SOFTWARE? The traditional legal framework for balancing interests between public and private claims on intellectual property has served the agricultural and industrial economies reasonably well. However, the advent of an information economy has created tensions between these claims and an imbalance between the public and private interests. Recently several interrelated factors have eroded the effectiveness of traditional legal regimes for protection of intellectual property: (a) the development of new communications and information technologies which proliferate the number of participants in the marketplace, speed the delivery of their intellectual products and services, and facilitate the rendering of perfect copies, (b) the globalization of the marketplace, (c) the separation of the intellectual asset from the products in which it can be marketed, (d) the trend toward greater privatization of the information marketplace, and (e) the advent of computer software as a hybrid technology which straddles traditionally discrete areas of copyright and patent protection. Moreover, computer software may have characteristics which These include: (a) storage and distribution in an electronic form which facilitates theft, (b) the high value of the copy compared to the cost of the copying effort, (c) the difficulty of pursuing litigation against millions of users, (d) the nature of the product which is intended for multiple use such as word processing systems, spread sheets, musical composition, architectural design, and diagnostics. Thus computer software differs from some of the more traditional works protected by copyright such as books and motion pictures, which are loaned and rented, and are more nearly comparable to phonograph records and tapes where such distribution is restricted. merit a special level of protection. Anne W. Branscomb/Computer Software/November 8, 1989 2 |