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The three-judge panel agreed that the injunction, which barred copying or selling of any of CNN's programming, based on the registration of a 30-minute segment of CNN's 24 hour programming, endangered free speech, and was inconsistent with the copyright

law. 46

The 11th circuit en bang, as noted, subsequently vacated

this decision and ultimately remanded the case to the district

court in a per curiam order on April 6, 1992.

The district court

has taken no action yet except to request the parties to respond to

a readiness to proceed notice.

At this point, the injunction

remains in effect; the broadcast monitoring service has been enjoined. The fair use defense has been rejected, subject to

further court proceedings.

3.

Copyright Office Analysis of s. 1805

47

Senator Hatch's bill would amend the preamble to the fair use provision in section 107 by adding the phrase "or monitoring news reporting programming" to that provision. This change is

apparently intended to permit the commercial reproduction of

46

Id. at 1479-80. The court noted that CNN had registered only the 30-minute segment, and not any of the remainder of its programming, id. at 1480, and that the injunction extended to future works that were neither registered nor fixed. Id. at 148083.

The court reasoned that an injunction restraining a class of future works would allow copyright claimants avoid the registration requirement, and also permit generic protection for works which might not fulfill the constitutional requirement of originality. Id. at 1481.

to

47

17 U.S.C. $107.

television and other news programming, and the preparation of derivative Works clips, compilations of clips and translation of

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permission.

If the bill is intended to exempt commercial monitoring services, the proposed amendment may not be sufficient to carry out that purpose.

In making a proper fair use analysis, the courts could find infringement if commercial monitors impair the potential

market for the copyrighted work.

On the other hand, if the bill can be interpreted to

allow reproduction for

commercial purposes,

this

would be

a

substantial departure from existing fair use precedent. Betamax, the most significant recent exposition on off-air taping, limits reproduction to home, noncommercial videotaping for timeshifting of free over-the-air broadcast television. If monitoring services

were permitted to reproduce and library cable news programming and other pay services, and audiotape radio and other programming, these uses would exceed those permitted by the Betamax decision.

Additionally, the bill would provide commercial access to more than just daily newscasts of so-called "hard news. Monitors

would be free to reproduce documentaries, magazine format-type

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48

cf. 17 U.S.C. $108 (f) (3) (libraries and archives permitted limited reproduction and distribution of limited number of copies and excerpts of audiovisual news programs).

newspaper clipping services, video monitors do not pay for the copies sold to clients. 49

Additionally, broadcast monitoring threatens copyright

owners' potential market for video clips, whether or not they

presently exploit that market. 50

Finally, beyond the accommodation provided by existing fair use doctrine, there is no viable First Amendment argument for

the proposition that proprietary rights in news programming should

be preempted by some general notion of paramount public access. Public access occurs through broadcast viewing, television news

archives, the ability to videotape news programming for later

а

viewing on noncommercial basis, and possibly licensing of broadcast monitoring services by copyright owners.

Conclusion

The ability to reproduce audiovisual news programming is

carefully circumscribed in the Copyright Act. Section 107 permits uses for criticism, comment, news reporting, teaching, scholarship or research, which satisfy the four factors listed in the section.

51

49

See Pacific and Southern, Inc., 744 F.2d at 1494 n.6. (broadcast monitoring service that did not pay for copies sold to clients, unlike a newspaper clipping service).

50

See Sony, 464 U.S. at 451 ("If the intended use is for commercial gain, that likelihood (of harm] may be presumed.").

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52

17 U.S.C. $108 (f) (3).

Senator DECONCINI. Mr. Oman, thank you very much. I also want to commend you for your attempt to bring the parties together. I appreciate your letter offering to do that. I'm very disappointed that the parties failed to resolve this issue amongst themselves. As you mentioned, you have had some remarkable success in bringing sides together to resolve other issues.

Some claim that this bill is in part justified because the courts have misinterpreted the Copyright Act. I believe that the fair-use doctrine provides a sound balancing test for courts to use on a caseby-case basis. In your opinion, have the courts significantly misinterpreted or misapplied the fair-use balance test?

Mr. OMAN. We don't have a lot of case law in this area, so in many ways we're speculating. The cases that have been tried in the past couple of years have not reached any result that gives us any legal precedent, but in my analysis of those decisions, I would think that there has been some incomplete application of the fairuse doctrine by the courts. The fact that there's commercial activity involved isn't an automatic compelling criterion for finding no fair use. The courts could start from the position that the use is unfair because of the commercial aspect, but then they have to expand that analysis to include the other four factors or some of the other factors that are involved in the application of the fair-use doctrine.

Of special significance here would be the impact on potential markets and the scope of the taking. If there is substantiality of a critical portion, it would be a factor that would be weighed by the court. If there was a serious degradation of potential markets by the use of this material, that would also be a factor. That analysis does not seem to have been done in the cases that have brought us to where we are today, and I would think that that would have an important bearing on the outcome.

The monitoring services I do think could make a valid claim that what they're doing is within the realm of fair use. Suppose they were asked to compile examples of biased reporting. Is that something the broadcasters could reasonably be expected to do? Are you hurting the broadcasters' potential markets in any realistic sense by allowing a monitoring service to provide this type of information? Is this an activity that the stations themselves would ever realistically undertake? I think the answer is no, and that should be a factor that the courts consider when they apply the fair-use doctrine.

Senator DECONCINI. Thank you, Mr. Oman. Many view the six illustrations in the preamble of section 107 as legal presumptions of what constitutes fair use. Are these illustrations examples of use that the court might consider in applying the four-factor balance test, or are they to be regarded as a fair use per se?

Mr. OMAN. They're by no means considered a fair use per se. I can think of many teaching applications, for instance, which they could affect the aftermarket value of the materials and that would not fall within the realm of fair use when you apply all of the criteria.

Senator DECONCINI. Once a broadcaster puts out the signal, particularly if it's on public airwaves instead of cable proprietary airwaves, then from your position, the signal cannot be owned by the person who receives it in their residence, for instance. They don't

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