public to possible dangers. Only through news monitors can we know if the news programs are carrying enough detail so that consumers can know whether or not they have a defective product and, if so, what to do about it. As you can appreciate, we need the information immediately or on a daily or overnight basis. News monitors can and do provide that service. If news monitors were to be put out of business, and I understand that's a real threat, our ability to respond to such crises would be severely diminished. We have tried to obtain information from broadcasters themselves. They may, in some cases, be willing to provide us with relevant segments of news programs, but more often they are not. It is critical for this subcommittee to understand that even when broadcasters are willing to help us out, they are just not set up to respond quickly enough to meet our clients' needs. In short, for public relations professionals, news monitors are a vital tool of the trade. Without the services of news monitors, we just could not do our jobs, and our clients would suffer. As agents of our clients, we have a legal right to tape news programming segments for our clients, but it would be utterly impractical and prohibitively expensive for us to send our employees to every city and State to watch and record the news. As important as the practical reasons why we support this legislation is the fact that PRSA and many of our clients strongly believe that news monitors should have the right to provide us with small segments of news programming. As a public relations professional, I am very aware of the profound impact that the electronic media has on public opinion in our country. It is only fair that our clients have the opportunity to review, to study, and develop responses to video tapes of news segments that relate to them or issues that are important to them. That is what the fair-use doctrine, as I understand it, is all about. It is about identifying fair uses of copyrighted material that do not affect in any way the copyright holder's market for their product. Our clients do not sell or rebroadcast the clips that news monitors provide them. They use them to be fully informed about what is being reported in the news about them, and since it is impossible for clients to collect information for themselves, they rely on news monitors to do that collecting for them. That is, to me, fair. To me and my colleagues and to our clients, it would be unfair if copyright holders had the power to deny us the opportunity to learn about and respond to information that is being conveyed to the public as news. It is even more unfair that broadcasters could prevent us from tracking or tracing the media placement of video press releases or advertisements in which they do not have any copyright interest. That is why PRSA supports S. 1805. It would restore the balance of power between our clients and the news media that some courts have upset by their recent decisions on news monitoring services. It would remind courts that while the rights of those who produce news programs are very important, the rights of their subjects should not be treated so cavalierly. Thank you for this opportunity to testify. I'd be glad to answer any questions. Senator DECONCINI. Thank you, Mr. Warner. Professor Patterson. STATEMENT OF L. RAY PATTERSON, POPE BROCK PROFESSOR OF LAW, UNIVERSITY OF GEORGIA, ATHENS, GA Mr. PATTERSON. Mr. Chairman, thank you very much for the opportunity to appear here this morning. I have submitted a brief statement, and I apologize for not being more complete, but the invitation to testify came as I was preparing to leave for Arizona to visit my new and first grandchild, who was born in Kingman. As I said in my statement, passage of S. 1805 is necessary not to change the law, but to clarify it for the courts. I am convinced that courts simply do not understand the Copyright Act, and I have recently prepared a brief in a case in which I am counsel—I might add, acting on a pro bono basis-dealing with this issue, and with the chairman's permission, I would like to submit a copy of this brief for the record, because it explains in some detail my position that the leading case in this area, Pacific & Southern against Duncan, was wrongly decided. I realize that Justice Holmes said law is what the courts say it is, but in regard to copyright, courts should say the law is what Congress has said that it is, and that is not what the courts are doing in this area. To illustrate my point, as I was preparing to leave yesterday to take my flight to Washington, I was watching Governor Clinton on the "CBS Morning Show." Since I had to leave before the show was over, it occurred to me that if I were in Atlanta rather than Arizona and had wanted to order a clip of Governor Clinton's appearance on the "CBS Morning Show," a monitor in Atlanta who provided me with a copy of that clip, under the law of the eleventh circuit, would be violating and infringing the copyright. The same is true of Ross Perot on CNN and President Bush's televised news conference. When the American public cannot have access to what candidates for the Office of President have to say over the public airwaves, something is wrong, and what is wrong is the eleventh circuit's interpretation of the fair-use doctrine with regard to news monitors, because what the eleventh circuit did was provide the television stations with unlimited copyright protection for their news broadcasts aired over the public airwaves. The copyright statute provides only limited protection, and here you have a court giving unlimited copyright protection. Now, I have great respect for Mr. Oman, the Register of Copyrights, but I read his statement that he submitted to the subcommittee dealing with the Pacific & Southern case, WXIA against Duncan, and what Mr. Oman did not understand was that the court, in granting the injunction in that case, gave perpetual copyright protection, unlimited in nature, to protect uncopyrightable as well as abandoned material, and this is wholly contra to what the 1976 Copyright Act provides. It is going wholly contra not only to the statute, but to the copyright clause of the Constitution. As Barbara Tuchman said, the basic duty of governance is to heed information, but there is information and there is information. CBS, NBC, ABC, CNN all provide different kinds of information and often different information about the same topic. In this day of television news, the news monitor has a major role in providing access to information that both voters and public officials must have in order to know what information to heed. Passage of S. 1805 will go a long way to ensure continued access to news reports by members of the American public. Thank you, Mr. Chairman. [The prepared statement of Mr. Patterson follows:] STATEMENT OF L. RAY PATTERSON BEFORE THE SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHT SENATE JUDICIARY COMMITTEE S. 1805 JUNE 16, 1992 Chairman DeConcini and members of the Subcommittee, I am deeply grateful for the opportunity to appear before you today in your consideration of S. 1805. If I had to state the reason for my support of S. 1805 in one sentence, it would be this: Passage of the bill is necessary to clarify the law because, as related to news monitors, courts have consistently misinterpreted the Copyright Act. The leading case on the activities of news monitors is Pacific & Southern d/b/a WXIA-TV v. Carol Duncan, d/b/a TV News Clips, 744 F.2d 1490 (11th Cir. 1984) (WXIA). WXIA erases the videotapes of its newscasts every seven days in order to reuse the videotape. For example, this Monday's noon newscast will be recorded over last Monday's noon newscast. The station was not in the business of selling videoclips, although it would sell a videoclip upon request. Since it erased the videotapes of the newscasts within seven days, it did not, of course, register the copyright of the newscasts. In fact, to bring its infringement action, the station had to register the alleged infringing clip, which the buyer had purchased for it. The Eleventh Circuit directed the district court to enter a permanent injunction. The district court entered the injunction and refused to exclude either uncopyrightable or abandoned material. The result is a judicially created copyright that clearly disregards both provisions of the Copyright Act that Congress has enacted and the copyright clause of the Constitution. The statutory scheme of copyright is subtle, but clear. The Copyright Act limits copyright to original works of authorship, $ 102(a); precludes copyright protection for ideas, $ 102(b); limits the rights of the copyright owner to five rights, $ 106; provides for the fair use of copyrighted works, § 107; and separates the right to copyright, $ 102(a), from the right to a remedy for copyright infringement. $ 411. Moreover, in its recent Feist decision, the Supreme Court made clear that originality in a constitutional requirement. Feist Communications, Inc. v. Rural Telephone Service, Inc., 111 S. Ct. 1282 (1990). The injunctive relief granted in WXIA not only disregards the constitutional requirement of originality, it also makes a mockery of all of the statutory provisions listed above. The WXIA court even disregarded the fact that "Copying a news broadcast may have a stronger claim to fair use than copying a motion picture." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 455 n. 40 (1984). Two examples that the Court used in Sony are "a legislator who copies for the sake of broadening her understanding of what her constituents are watching; or a |