Previously created works will stimulate additional sales of books, records, TV shows, and computer software that will entertain us in the future and generate significant positive contributions to our balance of trade in the world economy. I commend you for this hearing and look forward to reviewing this issue further. Thank you, Mr. Chairman.

Mr. HUGHES. I thank the gentleman. The gentleman from California, Mr. Moorhead, is recognized.

Mr. MOORHEAD. I ask unanimous consent that the statement of Senator Orrin Hatch be introduced into the record.

Mr. HUGHES. Without objection so ordered.
[The prepared statement of Mr. Hatch follows:]

STATEMENT OF SEN. ORRIN HATCH

JOINT HEARING BEFORE THE

SUBCOMMITTEE ON INTELLECTUAL PROPERTY & JUDICIAL ADMINISTRATION

OF THE HOUSE COMMITTEE ON THE JUDICIARY

AND THE SUBCOMMITTEE ON PATENTS, COPYRIGHTS & TRADEMARKS
SENATE COMMITTEE ON THE JUDICIARY

TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY PROTECTION

Thank you, Chairman DeConcini and Chairman Hughes, for convening today's joint hearing. Our subject this morning is extremely important. The Uruguay Round is now completed and a successful multilateral agreement on the protection of intellectual property the so-called TRIPS agreement included as a key component.

is

I am pleased that our negotiators have made the progress they have in setting effective worldwide standards of protection for patents, copyrights, and trademarks. Although points of contention remain, particularly with respect to audio-visual works, the limited nature of the items scheduled for discussion today demonstrates that the agreement is, on the whole, a significant achievement that should provide far-ranging benefits to America's creative community. I am particularly pleased that there appears to be unanimous agreement as to the need to address the issue of restoring copyright protection to foreign works that have fallen into the public domain. For all of this, the Office of United States Trade Representative should be congratulated.

I do, however, have two areas of concern where I believe that the implementing legislation does not go far enough.

Retention of Formalities in U.S. Law:

Of all the questions that vexed our two Subcommittees when we began the long road of harmonizing our copyright law to the broader, prevailing international standards of protection, none has proven to be more intractable than the persistence of a government-run system of copyright registration, presenting until 1976 an absolute bar to copyright protection and continuing until the present day as a trap for the unwary creator who mistakenly believes that his or her work is fully protected by copyright. The failure of Section 412 of the Copyright Act to provide attorney's fees and statutory damages to works that have not been registered with the Copyright Office cannot be justified except as a protection for copyright infringers. As Acting Register of Copyrights Barbara Ringer unequivocally testified last October at our hearing on the Copyright Reform Act (S. 373), this continuing defect in our copyright law is a clear violation of the Berne Convention, and thus a violation of GATT. No contradictory testimony on this point was received.

Is it not logical, in this light, to expect that a proceeding in the World Trade Organization to challenge $412 of the Copyright Act will eventually be filed? If, as the Trade Representative contends with respect to other issues, the prospect of such a direct challenge to United States law provides a basis for including relevant amending legislation in the GATT implementing bill, I do not understand why, and regret that, the bill we are today considering is defective in this regard.

Failure to Protect All Types of Computer Software:

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A second problem I have with the implementing legislation stems from its very first provision, the attempt to provide rental rights in computer programs. I am pleased that GATT requires its member nations to provide exclusive rental rights for computer programs and cinematographic works. It is important to note that, with respect to cinematographic works, an exception to the exclusive rental right is allowed, but with respect to computer software rental, no exceptions are permitted.

It is therefore extremely puzzling to find that the draft legislation proposes to exempt from the rental right the only type of computer software that is currently being rented in the United States: video games. Perhaps a convincing reason for this exception exists, but I have heard no explanation from the Administration as to why the decision was made to exempt this one discrete form of computer software from the protection that the TRIPS agreement mandates for all forms of software.

Mr. Chairman, my concern here is with the precedent that this unfortunate provision sets. What if one of our trading partners decides, for reasons of its own, not to protect rental rights for operating systems software, or for spreadsheets, or for some other discrete form of computer program? What would be our basis for objection, we who arbitrarily exempt video game programs, one of the largest categories of software?

I believe this is an important issue and hope that it can be resolved before final implementation of the GATT.

Before concluding, I must take advantage of this public occasion to recognize the significance of the achievements of the two chairmen who have convened this hearing and to express the strong feeling of loss that we all share stemming from the knowledge that neither will be here next Congress to continue their exemplary leadership.

At the conclusion of the crime conference, Rep. Moorhead summarized the many areas in which bipartisan cooperation has characterized the work of the Congress in intellectual property for all of the years that Rep. Hughes and Sen. DeConcini have chaired their respective Subcommittees. I believe that one would be hard-pressed to find a single issue on which such bipartisanship did not prevail. I, for one, am very proud of the many significant bills enacted over the past two Congresses and proud of having served as ranking Republican during that time.

Mr. HUGHES. Our first panelist is Helen Delich Bentley. She serves on the Committee on Appropriations and the Committee on Merchant Marine and Fisheries. She graduated with a B.S. degree with honors from the University of Missouri School of Journalism. Before entering Congress, Representative Bentley worked as a reporter, television producer, and international business consultant. She was appointed Chairman of the Federal Maritime Commission and served in that position from 1969 until 1979.

Our second panelist is Dana Rohrabacher, who represents the 45th Congressional District of California having been elected to that position in 1988. Prior to his election to Congress, Representative Rohrabacher was a special assistant to the President from 1981 until 1988. He worked as a writer, journalist, and radio reporter. He graduated with a bachelor of arts degree from Long Beach State College in California in 1969 and a master of arts degree in 1975 from the University of Southern California.

We welcome both of you to the subcommittee. We are delighted to have you with us. And we hope you can help us. You may proceed as you see fit.

Helen, good morning.

STATEMENT OF HON. HELEN DELICH BENTLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARY

LAND

Mrs. BENTLEY. Thank you, Mr. Chairman, and to all of the members of the subcommittee. I welcome this opportunity to speak to the committee on the subject of the length of terms of patents, which I believe is a primary issue in the General Agreement on Tariffs and Trade, GATT, of course.

The current language in GATT, which the United States has agreed to, provides for a minimum of 20 years from the date of filing. The language now being substituted provides for a required 20 years from the date of filing. Inventors are contacting my office and requesting that the language in the implementing legislation be 20 years from filing or 17 years from issue, whichever is longer.

I support that language. In my discussion with inventors, they have explained how the clock ticks in obtaining a patent. It is not an easy road of filing an application and then receiving a patent. Some of the delays effectively would shorten the life of a patent if the proposed language of a required 20 years-if you'll notice, I changed my testimony from "maximum" to "required"-if the proposed language of a required 20 years is included in the GATT implementing legislation. It does not add a thing to the system if the 20-year period is not long enough to issue a patent due to delays in the Patent Office.

In describing the pitfalls in obtaining an invention, one inventor friend described it as running down a road with potholes. It is not easy nor cheap to obtain a patent. The reasons for delays in issuing patents rest in the Patent Office.

We all know of instances of patents which have taken long periods of time to be issued. What is important in this consideration is the role the patent system plays in making the United States an industrial power. The New York Times originally reported on influential patents 2 years ago as one measure of a country's economic

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strength and future prosperity. High quality or influential patents often are cited in patent filings worldwide and they signal the emergence of important new technologies which will be under a patent holder's exclusive control for a number of years.

In 1993, the United States led the world in influential patents with 59,588, which is almost twice as many as Japan, Italy, the United Kingdom, France, and Germany, combined. We must have done something right to achieve this impressive record. And the 17 years from issue was-has been what the United States has had as a practice in the past.

For many reasons, inventors do not understand the proposed change in the term, nor do they understand why the Assistant Secretary and Commissioner of the Patent and Trademark Office, Bruce Lehman, signed an agreement with Japan to change the patent term. They particularly do not understand why Mr. Lehman would do this without-without public hearings where the inventors could express their opinions.

In fact, they do not understand why inventors have not been heard before any congressional committee. I commend you for your efforts today to hear from the inventing community and I hope they will fully explain their story to you in subsequent hearings.

What inventors will tell you now is their sincere belief that the proposed changes are being driven by some multinational companies and Japan. They sincerely believe the system now being developed will only benefit the rich and powerful and not the small inventor, who is the person who made this country great.

Proudly, inventors will point out that with their inventions, they are the creators of jobs and whole industries are developed, something which radically changed our lives.

We all know about the Wright brothers and Henry Ford, but what about our modern inventors who developed the Hovercraft, the waterbed, or my friend, Dr. Robert Rines, who developed high resolution image scanning radar, internal organ imaging? Or my friend, John Hall, who developed the technology for the electronic digital watch and thereafter changed how the world keeps time.

The list is endless, but what counts is the fact that inventors' ideas and their patents are at the base of job creation in the United States. They are a direct contribution to the American standard of living.

Mr. Chairman, some of these people are behind me behind me are friends and independent inventors and Hall of Fame members. And they are here today, Dr. Raymond Damadian, inventor of MRI; Dr. Wilson Greatbatch, inventor of the cardiac pacemaker. Unfortunately, Dr. Robert Ledley, inventor of the CAT scan, had to leave. They, too, support this position.

In our rush to develop trade agreements, we must not sacrifice the secret of their success and our success. Make the language for GATT read 20 years from filing or 17 years from issuance, whichever is longer. And, Mr. Chairman, before I close, I just want to point out that this morning I met with a group of regents from one of our great universities in Maryland, and I happened to mention this hearing this morning. They pointed out that patents by persons, such as Dr. Greatbatch and Dr. Damadian are what help the university systems be as successful as they are in this country