Statement of Ralph Oman Associate Librarian for Copyright Services Before the Subcommittee on Patents, Copyrights and Trademarks Senate Committee on the Judiciary 102nd Congress, Second Session June 16, 1992 Mr. Chairman and members of the Subcommittee, I am pleased to appear today before this distinguished body to testify on S. 1805. The bill, introduced by Senator Orrin G. Hatch on October 3, 1991, and referred to the Senate Judiciary Committee, would amend the Copyright Act's fair use provision with the apparent intention of permitting the commercial monitoring of news programming. This change departs from the prevailing fair use precedents, which would not permit commercial reproduction and the subsequent preparation of derivative works. The Copyright office does not support this change in the fair use provision. 1 Background Broadcast monitoring is a commercial service providing clips, or compilations of clips, of news and public affairs programming, or commercial advertisements of interest to particular clients. Clients request monitoring of certain specific subjects, commercial advertisements or other programming. Monitoring services use videocassette recorders to tape programming as it is broadcast, screen the taped segments responsive to client requests, and compile clips for specific requesters. Some services keep logs of the frequency of broadcast coverage of various subject matter, and stations are identified with a synopsis of the material, and the time and manner of broadcast. Also, these services may provide audiocassettes of news clips, as well as translations of clips into other languages. Consistent with the Code of Ethics of the International Association of Broadcast Monitors ["IABM"], monitors ensure that clips, or compilations of clips, are used by clients only for internal research and analysis. Membership is voluntary and not all news monitoring services bind themselves to this ethical code. Broadcast monitoring advocates posit many valuable public services flowing from the service. Among them are: access to newsworthy events, which might otherwise be unavailable to large segments of the population; program review for educational and historical purposes; uses for research and 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 broadcast, per agreement; a safeguard against, and evidence in, libel suits; and a means to evaluate truthfulness and accuracy in reporting. However, most of these services would still be available if copyright owners were rightfully compensated for their creative undertakings. 2 3 The Copyright Act and Fair Use Among the exclusive rights of the copyright owners in broadcast programming are the rights to reproduce, prepare derivative works and distribute copies of programming to the public. However, without copyright owner consent, broadcast monitors are performing all of these functions: they copy programming in its entirety on videocassettes; they prepare clips (or compilations of clips) of relevant programming for specific clients; and they commercially distribute these clips. Unless the Copyright Act contains applicable limitations on these exclusive rights, for purposes of commercial reproduction and preparation of derivative works, nonconsensual broadcast monitoring is infringing. 2 - For "hard news" films raising issues of significant public interest e.g the Zapruder film of the John Kennedy assassination, or My Lai footage, unavailable from other sources -a stronger case for fair use in broadcast monitoring may perhaps be demonstrated. See M. Nimmer and D. Nimmer, Nimmer on Copyright, $1.10 [C] (1992). In the usual case, however, the public has access to the underlying facts from many different news sources, and there is no need to copy the expression in a particular source's broadcast. The circumstances where First Amendment interests of public access would override copyright interests are extremely rare, and would not justify a sweeping revision of the copyright law to make commercial copying of news programming a fair use. Those instances in which there is an overriding need for public access could be handled by courts on a case-by-case basis. 1. General Fair Use Principles Copyright is designed to maximize the public availability 4 of creative works, and traditionally courts have been circumspect in construing the scope of intellectual property rights when new services, such as broadcast monitoring, alter markets and raise new competing interests. The fair use provision, section 107, 5 provides an outlet, dissipating the inherent tensions between owner and user rights. Under section 107, use of copyrighted works for socially criticism, comment, news reporting, teaching, favored purposes scholarship and research - See Harper & Row v. Nation Enterprises, 471 U.S. 539, 545 (1985); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). 5 See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1983). The qualification of proprietary rights is also consistent with the First Amendment goal of broad dissemination of information. CBS, Inc. v. Federal Communications Commission, 453 U.S. 367, 395-96 (1981). anding the provisions of sections 106 the fair use of a copyrighted work, such use by reproduction in copies Ahords or by any other means www by that section, for purposes such iticism, comment, news reporting, (including multiple copies for A use), scholarship, or research, is infringement of copyright. mercial use is presumptively not fair use. Harper & A wide v Nation Enterprises, 471 U.S. 539, 566-67 air use, when properly applied, is limited to copying by does not materially impair the marketability of the who is copied"); Sony Corp. v. Universal City Studios, Inc., **9, 451 (1984) (copying for commercial purposes is ezrely unfair). |