Equivalent combinations of professional experience and graduate education of the types described above are acceptable at each grade. (Thirty semester hours, or the equivalent, of part-time graduate education may he considered to be equal to one full academic year of graduate education.)

December 1968

Patent Examining
Series

4.

Alternate requirements

GS-1224 (p. 9)

a. Superior academic achievement at the baccalaureate level or one year of student trainee experience is qualifying at grade GS-7. A combination of superior academic achievement at the baccalaureate level and one year of appropriate professional experience is qualifying at grade GS-9. In each case, the pertinent criteria in section III of part II, Instructions to Users, of Handbook X-118 must be met.

December 1968

Mr. KASTENMEIER. Actually, if you don't mind, I would like to yield now to the gentleman from New York, who may not be able to be with us at the end of the presentations. The gentleman from New York.

Mr. FISH. Thank you very much, Mr. Chairman.

Mr. Samuels addressed one of my questions at the end of his testimony just now. It has to do with the type of copyright law that will be adopted by the European Community. The United States would like to see adopted a copyright law similar to ours, consistent with the Berne Treaty, but there are those who would like the European Community to provide expressly for reverse engineering exceptions, and you just testified it was a bad idea.

Just for the record, Mr. Oman, could I ask you if you agree that it is a bad idea, that this sort of activity would not encourage creativity or protect the creator or the investor?

Mr. OMAN. Yes, sir, I would agree with that analysis, and I think that will be the ultimate conclusion of the European Community. We were given an initial scare that they were intent on incorporating a specific exemption to permit decompilation as a political necessity, but I think they have since been rethinking their position and may recognize the disadvantages of it to their own industry, and are moving away from that their original position. I suspect that the leadership of Chairman Kastenmeier and Mr. Moorhead, and others who have written letters on that point, has shown the resolve of the United States around the world, and it has had the desired impact.

That position was initially prompted by the feeling that the United States has 70 percent of the market and is going to have 50 percent of the market for the foreseeable future. They were looking for ways to help themselves gain a competitive edge. But I think they recognize that that was a short-term consideration and that they really should be intent on encouraging the creativity of their own people. They would do that by not permitting a blanket decompilation or reverse engineering provision.

Mr. FISH. Thank you. Thank you very much.

This question is for both of you, Mr. Oman and Mr. Samuels: Given the present development and strength of our computer software industry, should there be any changes in our copyright or patent law?

Mr. SAMUELS. Well, I will speak to the patent law and I will leave the copyright law to the Register. At this point, Congressman Fish, we know of no reason why the patent law should be amended in any way to carve out any special provisions for computer-related inventions, so at this point we would not be in favor of any proposed changes to the patent law.

Mr. OMAN. On the copyright side of the shop, Mr. Fish, we have supported the adoption of legislation that would provide a rental right to the owners of computer programs, and we think that would go a long way toward curing the problems that arise from wholesale rental and copying of expensive programs.

Mr. FISH. I am glad to hear that. Thank you very much, gentlemen.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. One clarification: I think Mr. Samuels did testify that the administration believes the present combination of patent, copyright, and trade secret protection, et cetera, is consistent. You have indicated that across the board in terms of intellectual property the administration is satisfied with the present law. Mr. SAMUELS. Yes, we are, Mr. Chairman. I should add that, referring to the software rental bill which is now pending before Congress, that the administration has sent a letter to the Senate in support of that legislation.

Mr. KASTENMEIER. So this is not quite correct, your statement? Mr. SAMUELS. Well, in answering Mr. Fish's question with respect to the patent laws, we foresee no need for any changes in the patent laws. With respect to the copyright laws, we have supported and do support the software rental provision.

Mr. KASTENMEIER. One further point: I appreciate the fact that you quoted, Mr. Samuels, from the letter that Mr. Moorhead and I had sent to Ambassador Hills. You didn't mention the last paragraph on fair use, which would allow reverse engineering and decompilation under certain circumstances. Do you disagree with that part of the letter?

Mr. SAMUELS. No, Mr. Chairman, we don't. We do understand and do agree that under certain circumstances, primarily where reverse engineering or decompilation is for noncommercial purposes, that the fair use doctrine may be applied in that circumstance, but the reality is that when decompilation does occur, in most cases it is for commercial purposes, and as you know, commercial use of a copyrighted work is presumptively unfair.

Mr. KASTENMEIER. Thank you.

We will now continue, if we may, with Mr. Keith O. Fultz, the Director of Planning and Reporting in the Resources Community and Economic Development Division of the General Accounting Office. Mr. Fultz, we are delighted to have you here.

STATEMENT OF KEITH O. FULTZ, DIRECTOR OF PLANNING AND REPORTING, RESOURCES COMMUNITY AND ECONOMIC DEVELOPMENT DIVISION, GENERAL ACCOUNTING OFFICE

Mr. FULTZ. Thank you very much.

At your request, GAO examined whether Federal agencies are complying with the prohibition on copyrighting Government works. We also tried to determine the extent to which the copyright law has constrained the transfer of Federal software, and also we discussed some ideas and pros and cons of allowing Federal agencies to copyright computer software.

In summary, we found no evidence that Federal agencies are copyrighting works of the Government. Government officials, however, believe that about 10 percent of the software they develop at their laboratories has commercial applications. They did tell us that the transfer of these applications has been constrained because the Government cannot copyright and exclusively license it. Further, the laboratories are having limited success in encouraging business collaboration on developing software. I will briefly discuss each of these issues, beginning with compliance with the prohibition on copyrighting.

As I stated, we could find no evidence that the agencies have improperly copyrighted software developed by Federal workers. In a few cases, however, software distribution centers have used nonexclusive agreements to restrict foreign access or customers' rights to further disseminate software. Laboratory and business cooperative R&D agreements in this area are limited primarily because of concern about the protection that would result if they were to invest in developing and marketing jointly developed software.

I will now turn to the issue of constraints in transferring information. According to the officials from several Federal agencies, making software generally available allows for what they consider to be adequate dissemination of most of the software that they develop. This information is basically prepared for specific scientific applications and essentially has little application in the commercial world.

However, the officials did tell us that they believe the copyright prohibition has constrained the transfer and use of about 10 percent of the software with potential commercial application. This includes artificial intelligence material that could assist doctors in diagnosing diseases, or perhaps farmers in making decisions about irrigating, fertilizing, and spraying their crops.

The officials told us that they cannot determine the extent to which their inability to copyright is a problem, because in essence the businesses know that they cannot obtain a copyright. Thus, they do not seek to license the software or enter into cooperative agreements.

In order to put this into perspective, I would like to mention that the NIH has signed about 130 cooperative R&D agreements. It is just now beginning to negotiate its first software agreement. Also, of over 140 agreements that the Agricultural Research Service has signed or is in the process of negotiating, none focus on software. Again, we think that this shows how hard it is to carry this technology into the commercial world.

I will now briefly discuss the pros and cons of amending the copyright law.

The agency officials that we talked with agree that Federal software with commercial applications should be copyrighted and exclusively licensed. They also believe that the Federal researchers working on this software should share any income that would be derived. With these changes incorporated, they believe that the businesses could protect their investments and that the Federal researchers would have an incentive to actually work with the businesses in further developing the software. Several officials also noted that the copyright authority would further their agencies' missions to improve public health and safety, because they believe it would put them in a better position to control the quality and distribution of the software.

However, some Federal laboratory managers and researchers oppose copyrighting and licensing. They feel it would detract the researchers from the laboratory's basic research mission and perhaps interfere with the informal exchanges among Federal and university scientists that occur on a frequent basis. They also feel it would interfere with the existing policy of publicly disseminating technical information.