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me the question is how these services go about getting access to the information that they monitor, package, and eventually sell.

The fair-use doctrine has evolved over years through the courts as a balancing test that I believe has served us well and one which I'm reluctant to amend in the absence of compelling evidence. I will listen with great interest to the justification for the legislation, and I'll look for an answer as to why this conflict cannot be resolved in the marketplace.

Our first witness will be Ralph Oman, the Register of Copyrights.

Mr. Oman, please come forward. You may proceed, Mr. Oman, with your summary of your statement, please. STATEMENT OF RALPH OMAN, REGISTER OF COPYRIGHTS, LI

BRARY OF CONGRESS, WASHINGTON, DC, ACCOMPANIED BY ELLIOTT ALDERMAN, SENIOR ATTORNEY, GENERAL COUNSEL

Mr. OMAN. Thank you, Mr. Chairman. It's always a pleasure to testify.

I'd like to introduce my colleague from the Copyright Office, Elliott Alderman, a senior attorney on the general counsel staff.

Senator Hatch's bill would amend the Copyright Act's fair-use provision and permit the commercial monitoring of news programming. This change departs from the prevailing fair-use precedence. As a general rule, the compilers could not systematically reproduce segments of broadcasts or cable news programs without the permission of the local station or the cable system or the network whose programming was being used.

Broadcast monitors, as you know, assemble clips or compilations of clips of news and public affairs programming or commercial advertisements of interest to particular clients. Clients, often deeppocket corporate high rollers, request monitoring of certain specific subjects or of commercial advertisements or of other programming. For instance, RJR could ask a monitoring service to put together a package of all the reporting of health issues related to smoking that appears in prime time television. The monitoring service would use video cassette recorders to tape programming as it is broadcast, screen the taped segments responsive to the client's request, and compile clips in some sort of useful package.

Some services just keep logs of the frequency of broadcast coverage of various subject matter with station identification, a synopsis of the material, and the time and manner of the broadcast. In our view, many of these activities are already permitted under the copyright law. Also, these monitoring services may provide audio cassettes of news clips as well as translations of clips into other languages.

Broadcast monitoring advocates point out with justifiable pride that many valuable public benefits flow from their service. Among them are wider access to newsworthy events; program review for educational and historic purposes; uses for research and analysis, especially statistical 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 in fact broadcast; to protect against or to use offensively in libel suits; and as a means to evaluate truthfulness and accuracy in reporting.

Much of these activities would already be legal under fair use, depending on how the material was used. And for the activities that exceed fair use, I would think that a licensing arrangement could be worked out to compensate the copyright owners for their creative undertakings. Of course, if the results of the monitor reveal a consistent pattern of racial, ethnic, sexist, religious, or political bias in news reporting, then the copyright owners might be less willing to make these clips available, even at a price.

Senator Hatch's bill would amend the preamble to the fair-use provision in section 107 by adding the phrase "or monitoring news reporting" to that provision. This change would explicitly permit the commercial reproduction of segments of television and other news programming and the preparation of derivative works, clips, compilations of clips, and translations of broadcasts into other languages without the copyright owner's permission and without the copyright owner's compensation.

If I have correctly stated the purpose of the bill, the language may not be sufficient to exempt commercial monitors despite its best intentions. In making a fair-use analysis, the courts could still find an infringement if commercial monitors impair the potential market for the copyrighted work. On the other hand, if the bill is interpreted to allow reproduction for commercial purposes, this would be a substantial departure from fair-use precedent.

The Betamax case, which is the most significant recent exposition of off-air taping, limits reproduction to noncommercial video taping at home for time shifting of free, over-the-air broadcast television. If monitoring services were permitted to reproduce and retain copies of cable news programming and other pay services and audio tape radio and other programming, these uses would exceed those normally permitted under the Betamax decision.

The bill also seems to provide commercial access to more than just daily newscasts of so-called hard news. Monitors would be free to reproduce segments of documentaries, of magazine format-type shows, and public affairs broadcasting.

Broadcast monitoring threatens copyright owners' potential market for video clips, to some extent, whether or not they now exploit the market, and I understand that some of them already do provide a limited service in this regard. Section 107 of the copyright law already permits the use of clips from news programming for purposes of—and these are the six criteria mentioned in the preamble—for purposes of criticism, comment, news reporting, teaching, scholarship, or research, as long as they don't destroy a commercial potential. So as a general rule, I'd say that the commercial reproduction of someone else's expression of the news should not be given a blanket exemption from copyright liability on fair-use grounds.

The fair-use doctrine is a very flexible doctrine, and it already permits much of the news monitor's activity. They would like absolute certainty, like everyone else, but the fair-use doctrine doesn't lend itself to such certainty. Even so, I'm not at all sure that S. 1805 would give them any more certainty than they already enjoy under the current law. The six criteria that are mentioned in the preamble, they themselves do not give a blanket, absolute protection. Each must be analyzed through the fair-use lens.

For these reasons, Mr. Chairman, the Copyright Office does not support enactment of S. 1805 in its current draft. I would be pleased to respond to any questions either now or in writing, Mr. Chairman. Thank you very much.

[The prepared statement of Mr. Oman follows:)

Summary of Testimony of Ralph Oman

Register of Copyrights and
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

Senator Hatch's bill, S. 1805, is concerned with the monitoring of broadcast news programming. 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 at their request and for a payment.

There have been several cases involving news clipping services. At this point since the Eleventh Circuit’s en banc reversal of the panel's decision in the CNN litigation, the broadcast monitoring service in that case has been enjoined, and the fair use defense has been rejected, subject to further court proceedings.

$. 1805 is intended to permit the commercial monitoring of news programming by adding the phrase "or monitoring news reporting programming" to the preamble of the fair use provision, section 107 of the Copyright Act. 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 has some concerns about S. 1805. If the bill is intended to exempt commercial monitoring services, the amendment may not be sufficient to carry out that purpose. On the other hand if so interpreted, this amendment will be a substantial departure from existing fair use precedent. Also the bill would provide commercial access to more than just daily newscasts of "hard news" without a viable first amendment justification beyond that already accommodated by the fair use doctrine.

Section 107 carefully circumscribes the ability to reproduce audiovisual news programming. Commercial broadcast monitoring services do not satisfy these conditions, and do threaten the copyright owners' potential market for such services. They should, therefore, not be permitted as a fair use.

statement of Ralph Oman

Register of copyrights and

Associate Librarian for copyright Services Before the subcommittee on Patents, copyrights and Trademarks

senate committee on the Judiciary

102nd Congress, second session

Jun. 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

news

1

amend the Copyright Act's fair use provision with the apparent intention of permitting the commercial monitoring of 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.

Background

Broadcast monitoring is a commercial service providing clips, compilations of clips, of and public affairs programming, or commercial advertisements of interest to particular

or

news

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