The recent Appeals Court decision extending copyright protection to computer software is expected to increase congressional attention on the broader concern of protecting high-technology "intellectual property" such as computer chip designs, according to Hill sources and industry lobbyists.
"A lot of people are concerned that Congress has really failed to anticipate the pace of technological change," said a staffer on the Senate subcommittee on patents, copyrights and trademarks. "But it's an enormously complex subject. It's not an area where decisions should be made quickly."
A three-judge panel in the United States Court of Appeals in Philadelphia decided on Tuesday that Franklin Computer Corp., a maker of Apple-compatible computers, had violated copyright law by copying the Apple computer's "operating system"--the software enabling the machine to run other programs.
The court ruled in favor of Apple Computer's argument that computer software is protected by copyright even if it is a physical part of a computer chip rather than a separate set of operating instructions.
Opponents of copyright protection have argued that a computer program contained on a chip is really part of a machine and thus entitled only to patent protection. Another line of attack was author John Hersey's assertion in the report of the Commission on the New Technological Uses of Copyright (CONTU) that copyrights should protect only communications intended for human consumption and not computer processing.
Franklin said it is considering an appeal to the U.S. Supreme Court. Many people in the computer industry view the decision, which overturns a lower court's ruling allowing Franklin to continue offering the Apple-compatible competitive computer, as an important step in protecting software companies from "programming plagiarism."
"This is a very positive development," said Ron Palenski, associate counsel for the Association of Data Processing Service Organizations (ADAPSO). "The court essentially said that programs and programs on chips are copyrightable, and that's what we wanted."
Last year, ADAPSO sought to introduce a bill in the House extending copyright protection to all forms of expression of computer programs. Palenski said that the organization will try again this year.
After Congress rewrote the Copyright Act in 1976, it created CONTU, a special commission, to examine the computer software question. In 1980, several of the commission's recommendations for software protection were written into law and, according to Washington attorney Richard Stern, this was the legal basis for the Appeals Court ruling.
However, as industry and Hill sources state, the copyright question is just a single element in the broad sweep of intellectual-property legislation facing Congress. The House and Senate are considering similar versions of a bill that would extend copyright protection to the design of circuitry on silicon chips. Several Japanese semiconductor companies have been accused of marketing "knock-offs" which are copied from American chip designs and sold below the original's price.
"There will be some kind of significant software legislation passed within the next five years," said Washington copyright attorney Richard Stern. He and others believe that, as high technology continues to be a cornerstone of American trade, Congress will move to provide U.S. companies with sufficient intellectual-property protection.