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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

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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 17 U.S.C. $106.

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are

broadcast programming the rights to reproduce, prepare derivative works and distribute copies of programming to the public. However, without copyright owner consent, broadcast

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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.

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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

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.

is

no

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1. , General Fair Use Principles

Copyright is designed to maximize the public availability 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

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competing interests. The fair use provision, section 107, provides an outlet, dissipating the inherent tensions between owner and user rights.

Under section 107, use of copyrighted works for socially favored purposes criticism, comment, news reporting, teaching, scholarship and research is more likely to be found

See Harper & Row V. Nation Enterprises, 471 U.S. 539, 545 (1985); Twentieth Century Music Corp. V. Aiken, 422 U.S. 151, 156 (1975).

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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).

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s. 1805 would add the act of monitoring news

reporting programming to these noninfringing purposes.

Four factors are analyzed to determine whether a given

use is fair.

They include:

(1) the purpose and character of the use,
including whether such use is of a commercial
nature or is for nonprofit educational
purposes;

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(3)
the

amount and substantiality of the
portion used in relation to the copyrighted
work as a whole; and

(4) the effect of the use upon the potential
market for or value of the copyrighted work.

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News monitoring is a for-profit, commercial venture. 8

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The preamble to section 107 states that:

or

or

Notwithstanding the provisions of sections 106
and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies
phonorecords

by any other means
specified by that section, for purposes such
as criticism, comment, news reporting,
teaching (including multiple copies for
classroom use), scholarship, or research, is
not an infringement of copyright.

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V.

Commercial use is presumptively not fair use. Harper & Row Publishers Nation Enterprises, 471 U.S. 539, 566-67 (1985) ("Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied"); Sony Corp. v. Universal city Studios, Inc., 464 U.S. 449, 451 (1984) (copying for commercial purposes is presumptively unfair).

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At least some broadcasts are unpublished. Works are copied in their entirety, and the video clips serve a function similar

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or

a

distribution of copies or phonorecords of a
work to the public by sale or other transfer
of ownership, or by rental, lease, or lending.
The offering to distribute copies
phonorecords

to
group

of persons for
purposes

further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

of

17 U.S.C. 9101 (definition of publication) (emphasis added).

or

Since the public performance or display of broadcasts, alone, is not a publication, Pacific and Southern Co. Inc. Duncan, 572 F. Supp. 1186, 1197 (N.D. Ga. 1983), the works remain unpublished, unless there is a distribution of, 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.

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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

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