At least some broadcasts are unpublished. 9 Works are copied in and the video clips serve a function similar Publication is the distribution of copies or phonorecords of a 17 U.S.C. $101 (definition of publication) (emphasis added). Since the public performance or display of broadcasts, alone, is not a publication, Pacific and Southern Co., Inc. v. Duncan, 572 F.Supp. 1186, 1197 (N.D. Ga. 1983), the works remain unpublished, unless there is a distribution of, or offer to distribute, videotapes, transcripts or other copies of the program. Because of the creator's right of first publication, there is a stronger presumption that nonconsensual use of unpublished works that the author never intended to distribute, is not fair. See Harper & Row, 471 U.S. 539, 564 (1985) (narrower scope of fair use for unpublished works); H.R. Rep. No. 2337, 89th Cong., 2d Sess. 63 (1966) ("The applicability of the fair use doctrine to unpublished works is narrowly limited since, although the work is unavailable, this is the result of a deliberate choice on the part of the copyright owner. Under ordinary circumstances the copyright owner's 'right of first publication' would outweigh any needs of reproduction for classroom use"). Significantly, Harper & Row did not limit the reference to classroom reproduction to educational copying. Harper & Row, 471 U.S. at 553-554. Although works that are broadcast may be technically unpublished, their dissemination may mean the courts would analogize broadcasts to published works in applying the fair use provision. 10 Verbatim copying is generally not a fair use. See Sony, 464 U.S. at 449-50; Nimmer, supra note 2, at 13-90.13 n.61 and cases cited therein. And, assuming that a sufficient portion of an original broadcast were reproduced for commercial purposes, even a quantitatively small taking could infringe. Indeed, were the final (continued...) me the question is how these services go about getting access to the information that they monitor, package, and eventually sell. The fair-use doctrine has evolved over years through the courts as a balancing test that I believe has served us well and one which I'm reluctant to amend in the absence of compelling evidence. I will listen with great interest to the justification for the legislation, and I'll look for an answer as to why this conflict cannot be resolved in the marketplace. Our first witness will be Ralph Oman, the Register of Copyrights. Mr. Oman, please come forward. You may proceed, Mr. Oman, with your summary of your statement, please. STATEMENT OF RALPH OMAN, REGISTER OF COPYRIGHTS, LIBRARY OF CONGRESS, WASHINGTON, DC, ACCOMPANIED BY ELLIOTT ALDERMAN, SENIOR ATTORNEY, GENERAL COUNSEL Mr. OMAN. Thank you, Mr. Chairman. It's always a pleasure to testify. I'd like to introduce my colleague from the Copyright Office, Elliott Alderman, a senior attorney on the general counsel staff. Senator Hatch's bill would amend the Copyright Act's fair-use provision and permit the commercial monitoring of news programming. This change departs from the prevailing fair-use precedence. As a general rule, the compilers could not systematically reproduce segments of broadcasts or cable news programs without the permission of the local station or the cable system or the network whose programming was being used. Broadcast monitors, as you know, assemble clips or compilations of clips of news and public affairs programming or commercial advertisements of interest to particular clients. Clients, often deeppocket corporate high rollers, request monitoring of certain specific subjects or of commercial advertisements or of other programming. For instance, RJR could ask a monitoring service to put together a package of all the reporting of health issues related to smoking that appears in prime time television. The monitoring service would use video cassette recorders to tape programming as it is broadcast, screen the taped segments responsive to the client's request, and compile clips in some sort of useful package. Some services just keep logs of the frequency of broadcast coverage of various subject matter with station identification, a synopsis of the material, and the time and manner of the broadcast. In our view, many of these activities are already permitted under the copyright law. Also, these monitoring services may provide audio cassettes of news clips as well as translations of clips into other languages. Broadcast monitoring advocates point out with justifiable pride that many valuable public benefits flow from their service. Among them are wider access to newsworthy events; program review for educational and historic purposes; uses for research and analysis, especially statistical analysis; a source for compliance with Federal requirements for the right to reply and equal opportunity for candidates in political campaigns; a means to verify that advertisements and video news releases are in fact broadcast; to protect against or to use offensively in libel suits; and as a means to evaluate truthfulness and accuracy in reporting. Much of these activities would already be legal under fair use, depending on how the material was used. And for the activities that exceed fair use, I would think that a licensing arrangement could be worked out to compensate the copyright owners for their creative undertakings. Of course, if the results of the monitor reveal a consistent pattern of racial, ethnic, sexist, religious, or political bias in news reporting, then the copyright owners might be less willing to make these clips available, even at a price. Senator Hatch's bill would amend the preamble to the fair-use provision in section 107 by adding the phrase "or monitoring news reporting" to that provision. This change would explicitly permit the commercial reproduction of segments of television and other news programming and the preparation of derivative works, clips, compilations of clips, and translations of broadcasts into other languages without the copyright owner's permission and without the copyright owner's compensation. If I have correctly stated the purpose of the bill, the language may not be sufficient to exempt commercial monitors despite its best intentions. In making a fair-use analysis, the courts could still find an infringement if commercial monitors impair the potential market for the copyrighted work. On the other hand, if the bill is interpreted to allow reproduction for commercial purposes, this would be a substantial departure from fair-use precedent. The Betamax case, which is the most significant recent exposition of off-air taping, limits reproduction to noncommercial video taping at home for time shifting of free, over-the-air broadcast television. If monitoring services were permitted to reproduce and retain copies of cable news programming and other pay services and audio tape radio and other programming, these uses would exceed those normally permitted under the Betamax decision. The bill also seems to provide commercial access to more than just daily newscasts of so-called hard news. Monitors would be free to reproduce segments of documentaries, of magazine format-type shows, and public affairs broadcasting. Broadcast monitoring threatens copyright owners' potential market for video clips, to some extent, whether or not they now exploit the market, and I understand that some of them already do provide a limited service in this regard. Section 107 of the copyright law already permits the use of clips from news programming for purposes of and these are the six criteria mentioned in the preamble for purposes of criticism, comment, news reporting, teaching, scholarship, or research, as long as they don't destroy a commercial potential. So as a general rule, I'd say that the commercial reproduction of someone else's expression of the news should not be given a blanket exemption from copyright liability on fair-use grounds. The fair-use doctrine is a very flexible doctrine, and it already permits much of the news monitor's activity. They would like absolute certainty, like everyone else, but the fair-use doctrine doesn't lend itself to such certainty. Even so, I'm not at all sure_that_S. 1805 would give them any more certainty than they already enjoy under the current law. The six criteria that are mentioned in the preamble, they themselves do not give a blanket, absolute protection. Each must be analyzed through the fair-use lens. For these reasons, Mr. Chairman, the Copyright Office does not support enactment of S. 1805 in its current draft. I would be pleased to respond to any questions either now or in writing, Mr. Chairman. Thank you very much. [The prepared statement of Mr. Oman follows:] 23(...continued) Plaintiff's copyright. The fitness trail feature is a 'soft news' piece which, though informational, hardly fits in a category with [hard news films with significant public interest like the] film of the My Lai massacre. Moreover, Plaintiff has preserved the original film; a copy is available to anyone who wants one. Indeed, the fitness trail itself is available for viewing. Thus, the First Amendment offers no defense to Ms. Duncan."). 24 Using a novel fair use analysis, the court reasoned that the factors listed in subparagraphs (1) through (4) are weighed only when a case involves the particular uses listed in the preamble. In determining that defendant's use was copying for subsequent sale, the court concluded that none of the listed uses were implicated, so balancing the four factors was not necessary. Id. at 1195. The court also noted that defendant's copying was not inherently productive or creative, id., and, in dicta, observed that defendant did not qualify for the television news archives exemption in section 108 (f). The exemption applies to the "reproduction and distribution by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program...." 17 U.S.C. $108 (f) (3). The exemption applies where: (1) the reproduction or distribution is made (2) the collection of the library or archives (3) the reproduction or distribution of the 17 U.S.C. $108 (a). The legislative history of section 108 indicates that the term "audiovisual news program" applies to daily newscasts of local, regional and national television networks, interviews about current events, and on-the-spot coverage of news events, H.R. CONF. REP. (continued...) |