Network Inc. v. Video Monitoring Services of America, Inc., 940 F.2d 1471 (11th Cir. 1991), vacated and rehʼq granted, 949 F.2d 378 (11th Cir. 1991), 959 F.2d 188 (11th Cir. 1992). Consequently, it is clear to broadcast news monitors and their clients that they cannot count on the courts for protection.

By focusing almost exclusively on the commercial nature of broadcast news monitoring services, the Duncan court and others have defied congressional intent. That a use is commercial is only one element of the fair use equation.7 The House Report accompanying the 1976 Copyright Act clearly stated that the language in Section 107 referring to whether or not the purpose and character of a particular use of copyrighted material is commercial was "not intended to be interpreted as any sort of not-for-profit limitation . It is an express

recognition that . . . the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions."8

In creating a presumption against a finding of fair use based on the commercial nature of broadcast news monitoring services, Duncan and its progeny inadequately considered the public's constitutional right to receive information. These cases overlook the fact that broadcast monitors are critical to the exercise of that right. The attached paper analyzes the fair use doctrine as applied to broadcast news monitoring. Here, I will briefly discuss each of the four factors to demonstrate that enactment of the legislation that we are proposing is consistent with the language and spirit of Section 107.

The most important of the four factors is the effect of the use on the potential market for or value of the work.9 The Supreme Court has stated that uses of copyrighted material that have no demonstrable effect on

7.

8.

Many commercial uses of copyrighted material such as parody, satire, and literary criticism are often considered to be fair.

H.R. Rep. No. 1476, 94th Cong., 2d Sess., at 66
(1976).

the market for or value of a copyrighted work need not be prohibited. 10 This is so because such uses do not diminish any monetary incentives for the creation of works.

Broadcast news monitoring has no adverse impact on broadcasters' incentives to create news programming because monitors do not compete with broadcasters for revenues. Broadcast news monitoring services do not rebroadcast news programming. The IABM Code of Ethics requires that our members make it clear to our clients that the rebroadcast of segments from copyrighted news programming can be a violation of the Copyright Act.

Unlike commercial broadcasters, our revenues are not tied to advertising rates or to audience size. News monitoring services do not diminish the value to advertisers of news programming. We offer an entirely different set of services tracking, indexing and excerpting news programs from different media, in different localities, for a post-broadcast market base of customers that may or may not have viewed the news off-air.

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to a

Moreover, broadcasters themselves do not currently service or exploit the demand for monitored, after-broadcast news programming. They have not demonstrated any interest in doing so. Most broadcasters make previously-aired programming available to the public on a casual or delayed basis, if at all. It should be noted that in some cases, broadcasters have entered into exclusive licensing agreements with certain news monitoring services. However, most broadcasters refuse to grant licenses to news monitors, and many that do will only grant licenses for unreasonable sums. Either way, the public's interest in having consistent, complete and immediate access to broadcast news programming is not now well served by most broadcasters.

In no sense, then, does broadcast monitoring have any negative effect on any potential market for broadcasters. In fact, most news monitors expand the awareness of and audience for a broadcast news program.

10. Sony, 464 U.S. at 450.

11

Another statutory factor is the nature of the copyrighted work. The fact that news monitors make use of news programming should weigh strongly in favor of concluding that such use is fair. The Supreme Court has already stated that the use of an informational rather than a creative work is more likely to be fair: "copying a news broadcast may have a stronger claim to fair use than copying a motion picture."12 The public has a compelling interest in having access to news programming, which not only reports the news but also shapes public perceptions of newsworthy events.

In addition, the ephemeral nature of the broadcast news should be seen as supporting a determination that monitoring is a fair use. In the legislative history of the 1976 Copyright Act, it was noted that the reproduction of works that are "out of print" or otherwise unavailable for purchase through normal channels is more likely to be considered fair than the reproduction of works more readily available.13 The same congressional purpose is served by broadcast news monitoring services, which make available information that would otherwise be unavailable for public analysis or review.

Another factor in the fair use calculus is the amount of the copyrighted work that is used.14 This factor, too, should be seen as favoring a finding that broadcast news monitoring services act consistently with the fair use doctrine. Broadcast news monitors record news programming in order to make available to their clients brief segments from one or more broadcasts; they normally do not use entire or even large parts of news broadcasts. Generally, our clients want broadcast news monitors to sieve through news programming to identify and forward only those segments that are of particular interest to them. Broadcast news monitoring services are valuable to their clients precisely because they provide only small clips of news programming.

13.

14.

S. Rep. No. 473, 94th Cong., 2d Sess., at 64 (1976). 17 U.S.C. § 107(3).

The purpose and character of the use is yet another factor, the one on which the Duncan court placed the most weight.15 We believe, however, that one of the strongest arguments in favor of concluding that broadcast news monitoring should be a fair use is that the purposes for which selections of monitored programs are used by our clients are those specifically enumerated in the preamble of Section 107: comment, criticism, education and research. Notwithstanding that broadcast monitoring services are commercial, the purpose and character of the use made of monitored news programming is wholly consistent with the understanding of Congress in codifying the fair use doctrine in 1976.

We believe that our industry and the public's need for access to information from news programming should fall squarely within the scope of Section 107. Courts have ruled differently, however.

We applaud Senator Hatch for introducing S. 1805, which would restore the proper balance to the fair use doctrine by amending the preamble of Section 107 to include "monitoring news reporting programming" among the list of purposes for which a use is presumptively fair.

This legislative approach does not create blanket protection for broadcast news monitoring services or exempt them from the copyright law. In cases involving broadcast news monitoring, courts would still need to weigh all four of the statutory factors. S. 1805 would simply remove a judicially created presumption against a finding of fair use, would leave individual cases for the courts to resolve after a full consideration of the Section 107 factors, and would properly balance the copyright owner's right to exploit the market for broadcast news with the public's interest in having access to that news. By adding "monitoring news reporting programming" to the preamble of that Section, Congress would signal to the judiciary that broadcast news monitoring services are the kind of activity that promotes the First Amendment interests embedded in the fair use doctrine.

15. 17 U.S.C. § 107(1).

We are here today to encourage Congress to intervene to move courts back to the language of, and legislative intent underlying, Section 107. The VCR, which was in its infancy at the time that the 1976 Copyright Act was enacted, now makes it possible for the public to watch and respond to the news, wherever and whenever it may be broadcast.

As the Court recognized in Sony, use of the VCR can promote the public's interest in the broad availability of expression -- an interest now being thwarted by Duncan and other decisions. In short, broadcast news monitors are seeking your help in enacting legislation to restore the public's right to have meaningful access to the broadcast news.

Thank you for inviting me to testify this morning. I would be pleased to answer any questions.