enter into license with the originators of the programs that they copy and sell, but still try to justify their behavior under the cloak of the "public interest". For example, one witness who

testified before Congress on behalf of the broadcast monitoring industry equates the guarantees of free speech with an unimpeded i.e., unlicensed right of public access to information.1

This tips the balance too far. The simple truth is that this is a business issue, not a constitutional issue. We are not disagreeing about whether the public should have access to news clips but about whether copyright holders deserve compensation for and protection of their product.

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Under existing law, the delicate balance between public access and copyright protection has been maintained successfully, we think by a combination of current statutory rights and voluntary negotiations among the affected parties. Before turning to the new legislative scheme that the video monitors support, let us examine those existing statutory and licensing means for providing public access to news transmis

sions.

Consider first existing statutes. The law has developed several avenues to access news programs even for those who decline to enter into a voluntary license. The Supreme Court's 2 Sony decision,2 for instance, grants protection to home users who act without commercial motives in taping a broadcast for later

viewing.

Parallel to that judicial development, legislative

protection has also been conferred on non-profit institutions whose purpose is to ensure that broadcasts are monitored, preserved, and available for public use.

3

The video monitors paint a picture of new technological advances rendering prior law in this arena obsolete. That picture distorts current reality. In fact, Congress already addressed the need for public access to news broadcasting when it crafted the Copyright Act of 1976. In particular, Congress incorporated into that omnibus revision a reproduction right for libraries and archives, precisely for the purpose of promoting public access to specified categories of works. Notable for current purposes are two provisions of that statutory section. First, the archive reproduction right applies primarily to literary works, dramatic works, and sound recording; it does not apply to motion pictures and other audiovisual works. But the law incorporates a key exception, permitting archival reproduction and distribution of "an audiovisual work dealing with news. 14 As to such an "audiovisual news program, "15 Congress in 1976 granted a reproduction and distribution right to libraries, archives, and their employees acting within the scope

6

of their employment. Second, that right is subject to the proviso that the library of archive must be acting "without any purpose of direct of indirect commercial advantage.

"7

Congress' reason for drafting this statutory provision is instructive. Prior to adoption of the 1976 Act, Vanderbilt University had been sued by CBS for videotaping the latter's daily news program. Prompted by Senator Howard Baker's concern to forestall such suits in the future, Congress crafted into the law this special provision for the preservation of audiovisual news programs. The upshot of this provision is that not only Vanderbilt University, but any other qualifying library or archive is now exempt from suit by CBS, NBC, ABC, CNN, or any other national or local news purveyor for reproducing and distributing news programs in compliance with this statutory scheme.8

Moreover, Congress has further addressed the question of public access to news outside the copyright arena. In creating the American Television and Radio Archives, Congress explicitly excepted from protection under the Copyright Act the reproduction and distribution by the Librarian of Congress of a "regularly scheduled newscast or on-the-spot coverage of news events."9 Library of Congress is also given permission under the Copyright Act itself to create an archive of television transmissions.10

The

The foregoing summary of legislative provisions demonstrates that solicitude for public access to news programming has already enjoyed extensive congressional attention. Indeed, no fewer than three sections of federal law ensure such access under

appropriate circumstances.

Given that Congress has already

calibrated the balance between the exclusive rights of copyright owners and the interest of the public in access to news transmissions, we are not confronted today with a situation in which technology has outstripped existing legal norms, forcing Congress to confront an issue that it had not previously considered. Therefore, unless the proponents of S. 1805 can demonstrate that market forces have entirely frustrated the earlier Congressional attempts to foster access to news consistent with general copyright protection for newscasts (with all that such protection implies), there is no basis for disturbing to existing legislative scheme.

We now turn from existing statutes to current licensing practices. Far from demonstrating a breakdown in the marketplace for access to news programs, current licensing practices can accommodate the growth of the video monitoring industry through market-based incentives. In addition to the almost universal

availability of video monitored transcripts, networks such as NBC and CNN have formalized licensing arrangements with video monitors to facilitate the timely and comprehensive availability of their news and public information broadcasts. Other networks and broadcast stations are negotiating such agreements.

Existing licensing arrangements validate the for-profit use of broadcast news while increasing the availability of information. Such licenses differ fundamentally from the free ride for which video monitors seek Congressional approval today. First,

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and most obviously, a licensed party such as Radio TV Reports remits a part of the money it earns from end users for sale of authorized news products back to the broadcaster. The current state of the news business, particularly the network news business where budgets have been cut or are severely constrained, argues strongly against taking away the financial benefit of an ancillary news product at this time. Second, licensed tapes contain safeguards to control the copyright owner's interests beyond the ambit of visual monitoring: copyright notices, for instance, and legends specifying that the subject material may not be edited, rebroadcast, or further commercially exploited. No such restrictions govern unlicensed monitoring services. Third, the current scheme forces direct face-to-face negotiations between news producers and video monitors, sensitizing each group to the needs of the other; such negotiations will come to an abrupt halt should Congress intervene to create a privilege for conduct previously subject to voluntary licensing.

In sum, even without "corrective" legislation, numerous avenues currently exist by which the public can obtain access to news programming. These include: duly authorized licensees, such as Radio TV Reports; instrumentalities of networks, such as CNN Library Tape Sales and Turner Educational Services; Vanderbilt University and other nonprofit libraries and archives across the 50 states; the Library of Congress' American

Television and Radio Archives; and home taping under Sony by any