Copyright term, film labeling, and film preservation legislation : hearings before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 989, H.R. 1248, and H.R. 1734 ... June 1 and July 13, 1995 (1996)

418 special. And, therefore, you're saying that talent, and the fruit of talent specifically, shall be protected and it's value will be protected by these laws. Now when you start to analyze it from that perspective, I think that — first of all, I think it's much more accurate because you're trying to describe human — or you're trying to describe nature more accurately, but I think, more importantly, it also begins to show you how much more complex this is than simply creating a right, a property right based on an incentive theory. What happens, then, when you start to deal with these complexities— and this is where I want to get to my question — is that you realize that there really are, in fact, fairly profound distinctions between different kinds of intellectual property that's being created. There's a distinction between musical property, performance of — I'm sorry, musical property, between that and an image that is created, between that and literature, and then, finally, between that and what we are calling works made for hire, although the difference there is more one of an economic distinction. But I wonder if you have given thought to, and if we ought to be thinking at this level, about the direction that we should be going ultimately in these things, or maybe not ultimately, but as we progress as a nation, with respect to first, drawing these distinctions and second, recognizing that perhaps the reproduction of a work in literature, let us say, in a verbatim way, in a perfect reproduction, ought to be treated differently with respect to copyright law as the use of it in a much more derivative fashion, and that one ought to be protected in a way that is different from the other. And at what point, without, clearly, wanting to get into the business of micromanaging these problems and these complexities, but at what point should and could and may the U.S. Congress get involved in thinking about dealing with these complexities in a way that more accurately comports with real life, with nature? Professor? Mr. Reichman. I think you raise a capital point, and I just wish to add something to your list of things that might not be the same, even though the copyright law makes them look the same. I would like you to have added computer programs and electronic information tools in general. What we're doing is stretching the copyright law to cover defects of the 19th century copyright paradigm and to the 19th century patent paradigm which just don't work very well for the 2 1st century technologies in which we happen to excel. I believe that your question leads to this: I would urge the Congress to consider the need for a proper innovation law, a proper innovation law that would deal particularly with subpatentable, noncopyrightable innovations. As regards computer programs, the courts have done exactly what we predicted they would do; the valuable parts of computer programs are not really protected in copyright law at all. Copyright law just keeps you from making a slavish imitation. We need an innovation law, and my recent work has raised the question of whether we need one based on exclusive property rights under the models of the 19th century or whether we need one based on liability principles, which I believe would elevate investment in subpatentable innovation of all kinds without creating new