When it enacted the Copyright Act of 1976, Congress decided that it was important to codify the longstanding common law doctrine of fair use. See 17 U.S.C. § 107. Section 107 states that it is not a copyright infringement to make certain uses of copyrighted material, where the use if for an important public purpose, such as "criticism, comment, news reporting, teaching, scholarship or research." In the legislative history accompanying the Act, $ 107 was described as codifying "one of the most important and well-established limitations on the exclusive rights of copyright owners." (H.R. Rept. 1476, 94th Cong., 2d Sess., at 65 (1976). After indicating the types of uses that qualify for fair use consideration, $ 107 sets out the factors a court should consider in determining whether a particular use of copyrighted material is a fair use. Those factors are: First, the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purpose; Second, the nature of the copyrighted work; Third, the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and Fourth, the effect of the use upon the potential market for or value of the copyrighted work. The legislative history of the Copyright Act makes clear that while "the bill endorses the purpose and general scope of the judicial doctrine of fair use," there is not disposition to freeze the doctrine in the statute, especially during a period of rapid technological change." (H.R. Rept. supra, at 96. Thus, Congress intended that the fair use doctrine be flexible enough to protect new technological uses of copyrighted works. Important, productive and beneficial uses such as broadcast monitoring were not foreseeable when the Copyright Act was enacted. Video clipping companies that provide news monitoring services would seem to fall squarely within the core range of activities protected by the fair use doctrine. In fact, the ultimate purposes of monitoring are precisely those defined in the first sentence of $ 107, that is, they advance "criticism, comment, teaching, scholarship, and research." Therefore, I have concluded that news monitoring is exactly the type of activity that has traditionally been the subject of common fair use protections and the kind of activity that Congress intended to protect in its 1976 codification of the fair use doctrine. Thus, when a video news compilation satisfies the four-factor analysis of $ 107, there should be no question of copyright infringement. Broadcast monitors play an integral role in the broad dissemination of news and other public affairs programs. Recognizing this fact, most broadcasters have excellent working relations with monitors that serve their communities. Indeed, many refer viewer requests for clips of recent broadcasts to monitors. In this way broadcasters and broadcast monitors together ensure that the demand for both immediate news by local audiences and for retrieval of footage by a national audience is wholly satisfied. The Supreme Court has correctly interpreted the fair use doctrine to mean that courts should not "inhibit access to ideas without any countervailing benefit." Sony Corp. v. Universal City Studios, 464 U.S. 417, at 450-51 1984). Because monitoring has no real or potential economic impact on newscasters, monitors simply do not diminish the incentive to produce news or other programs. There is no countervailing benefit, economic or otherwise, to be derived from a decision to suppress the news, which is the inevitable result of a rule disqualifying news monitors from fair use consideration. On the other hand, we must consider the harm that is manifestly present in viewing newscasters as the only appropriate gatekeepers to the news. Among the important individual rights that have been recognized in this country since its inception are the rights to an individual's good name and reputation. Without video monitors, there would be a very limited ability of slandered individuals to learn the source and content of slanders committed and almost no ability to assert their rights in courts. Also, in recent weeks the danger of allowing newscasters themselves to determine questions of public access to the news has been dramatically illustrated by the public positions taken by several Los Angeles television stations. Those stations have indicated their intention to resist subpoenas seeking evidence in their possession showing the commission of numerous crimes of violence associated with the recent disturbances in that city. I find it extremely ironic that news departments that often hire investigative reporters to uncover and report evidence of crimes and other wrongdoing have, first, refused voluntarily to turn over the incriminating evidence in their possession, have then forced law enforcement agencies to obtain subpoenas for the production of such evidence, and, finally, have failed to comply fully with those subpoenas. To my knowledge, no need to protect sources or other cognizable First Amendment claim has been asserted. Instead, it is simply a matter of certain television stations deciding that it is they who will decide which crimes should be reported and which should be covered up. That, I believe, is a serious breach of the public trust as well as a betrayal of the responsibility of the press that is the flip side of the First Amendment. For all these reasons, Mr. Chairman, I believe that Congress should act to correct the judicial imbalance that has been created by those courts that have tilted the copyright law against the public's right to have access to broadcast information. We should enact legislation like S. 1805 so that companies and individuals that provide clips, or compilations of clips, of broadcast news programming for the internal use of third parties will be recognized as engaged in an activity protected by the fair use doctrine. At this point, a legislative solution is required to restore the balance of rights between producers of news programs and the public. Senator DECONCINI. The committee will stand in recess, subject to the call of the Chair. Thank you, gentlemen. [Whereupon, at 11:27 a.m., the subcommittee adjourned, to reconvene at the call of the Chair.] To amend title 17, United States Code, to clarify news reporting monitoring as a fair use exception to the exclusive rights of a copyright owner. IN THE SENATE OF THE UNITED STATES OCTOBER 3 (legislative day, SEPTEMBER 19), 1991 Mr. HATCH introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 17, United States Code, to clarify news reporting monitoring as a fair use exception to the exclusive rights of a copyright owner. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That section 107 of title 17, United States Code, is 4 amended by inserting "or monitoring news reporting pro 5 gramming" after "news reporting". O (119) Dear Sirs: Re: Comments of Cox Enterprises, Inc. Regarding Video Enclosed please find the Comments of Cox Enterprises, Inc. regarding S. 1805, a bill to make video monitoring a fair use under the Copyright Act. If you have any questions or need additional copies of the enclosed comments, please contact me. Very truly yours, Diave Thouse Diane M. Morse Enclosure |