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blanket fair use exemption. As the court noted in WXIA-TV, video monitors copy and sell for "unabashedly commercial reasons." 744
F.2d at 1496.
Video monitors add nothing of their own creation
to the programs; they simply make exact copies of the creative
work product of others and sell those copies for a profit.
This is in stark contrast to Sony Corp. of America v.
Universal Studios, Inc., 464 U.S. 417 (1984).
In Sony, the
Supreme Court held that noncommercial home taping for time
shifting purposes qualifies as a fair use. The Court made clear, however, that taping for a commercial purpose falls outside of the fair use exception. Indeed, the Court indicated that a commercial purpose makes the use "presumptively unfair." Id. at
Sony, therefore, does not provide a safe haven for video
Unable to disguise the commercial purpose of their
activities, video monitors attempt to cloak their activities in
the benefits of public access to news.
The issue here, however,
is not whether video monitors provide access to news, or whether
their services are in some other way valuable to the public. The issue is whether video monitors may appropriate the creative work
product of broadcasters and sell it for a profit, without
permission from or compensation to the copyright owner. Decades of copyright teaching underscore that the fair use doctrine was not intended to sanction wholesale pirating of copyrighted works.
Contrary to the claims of video monitors, it is in fact
broadcasters like WSB-TV that provide the public access to news
that it would not otherwise have. Indeed, WSB-TV spends millions of dollars every year precisely to ensure that the public has access to news. This is the very essence of WSB-TV's business.
video monitors insist that their unauthorized copying and sale of programs is the only means by which the public can
gain access to these programs.
video monitors suggest that
without their services, newscasts are "lost" after broadcast.
This is patently untrue. Typically, television stations and the networks retain for a considerable period tapes of the actual programs, and often retain tapes of news segments (usually without the anchor component) indefinitely. By contrast,
monitors erase their copies after 30 days.
like WSB-TV are and will always be the primary, long term source
of access to copies of their news programs.
While video monitors commercially exploit copies of
newscasts within 30 days of telecast, there are several
legitimate ways the public can gain access to the programs. Under Sony, the public is free to videotape the news and public
affairs programs of broadcasters for personal use.
commercial use, many broadcasters sell copies of their programs
to the public, either directly or through licensees.
noncommercial educational purposes, the Copyright Act
specifically allows archives and libraries to make and distribute
copies of news programs.
In addition to the commercial or noncommercial nature
of a use, a critical factor in the statutory fair use calculation is "the effect of the use upon the potential market for or value
of the copyrighted work." 17 U.S.c. S 107 (4). Although video monitors continually downplay this factor, clearly, the sale of copies of broadcast news and public affairs programs is an activity that broadcasters can and do engage in. Indeed,
numerous broadcasters offer for sale, either directly or through
a licensee, copies of their programs.
Many more are exploring
the possibility of making such sales to the public.
Several factors account for the fact that broadcasters
have become increasingly interested in participating in this market. First, as a result of the WSB-TV and CNN litigation
against video monitors, many broadcasters have become aware that
there is a significant market for their programs that they were
not previously aware existed.
In the past, some stations did not
offer programs for sale because they received only sporadic
requests for their programs. Now that licensees are aware of the demand, and the potential revenue stream from such sales, they are quite appropriately interested in pursuing this market.
Second, the economics of funding news budgets have forced many broadcasters to explore additional sources of revenue and aftermarkets for their work product. The staggering
potential of this work product was revealed by Video Monitoring
Services in testimony last week: the video monitoring industry's annual revenues are at least $50 million. This is a significant
source of revenue created by the broadcasters' labor over which
they may appropriately take control.
Finally, and most importantly, broadcasters are
becoming increasingly aware that we are on the edge of a
revolution in communications.
It is only a matter of time before
the public will be able to access video "on-line" in a manner
similar to accessing text databases, such as Nexis and Lexis.
Consequently, broadcasters anticipate that they will be packaging and repackaging their work product to take advantage of new markets and technologies. If video monitors are handed a blanket
exemption from copyright liability, many of these markets would
receives a handful of requests for copies of the interview, it
may choose to sell copies to the public.
However, if the demand
is great enough, the station might decide to rebroadcast the
interview in another newscast or prepare a special program
incorporating it, in both instances selling advertising time.
If NEWSPAPER CLIPPING SERVICES PAY FOR COPIES THEY
video monitors sell copies of the interview to the public on the
basis of "fair use" and without any need for WSB-TV's consent or
license, WSB-TV's capacity to develop and market its work product
could be undermined, perhaps even destroyed.
DISTRIBUTE; SO SHOULD VIDEO MONITORS
As Senator DeConcini pointed out at the hearing on s. 1805, video monitors are analogous to newsclipping services. Newsclipping services do not make copies of newspaper articles
and sell them to the public; they purchase the copies from the
newspaper and sell them.
In this way, newsclippers compensate
the newspapers for use of their creative work product.
beyond cavil that if newsclipping services made photocopies of
newspaper articles and sold them to the public, they would
infringe the copyright in the papers.
cf. Wainwright Securities,
Inc. V. Wall Street Transcript corp., 558 F.2d 91 (2d Cir. 1977)
(defendant's almost verbatim appropriation of plaintiff's reports
is not a fair use, and constitutes copyright infringement);
Quinto v. Legal Times, 506 F. Supp. 554 (D.D.C. 1981) (almost
verbatim copying of article not a fair use).
Like newsclipping services, video monitors should
compensate broadcasters for permitted uses of the news organizations' creative work product. In reliance on "fair use" principles, some monitors, such as the defendant TV News Clips in WSB-TV; actually refuse to discuss licensing with broadcasters.
The fact that license agreements between several broadcasters and
certain video monitors already exist validates the need to
compensate broadcasters for these uses.
This is fundamentally an
activity that must be licensed.