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own it, they only have the right to view it, as far as commercial marketing goes.
Mr. OMAN. Well, you're combining two different scenarios there. If it's in the home, it's not commercial.
Senator DECONCINI. Well, I mean if it's in a tavern or it's in a hotel.
Mr. OMAN. They can use it for the purpose it was intended to be used. They can view it, and they can, under the Betamax decision, tape it for time shifting purposes, and that is
Senator DECONCINI. But not for commercial use.
Senator DECONCINI. So once they take it and then commercialize it, that's where the violation occurs. If we amend section 107 to include news monitoring in the preamble, are there other uses or industries that might justify the same type of statutory recognition or modification?
Mr. OMAN. We hear complaints from time to time from many people about the uncertainties involved in the fair use doctrine. They would like to have some sort of blanket exemption to say that what they're doing is presumptively fair use and they're not subject to copyright liability. We have heard from the librarians on this score in the past, we hear from certain other nonprofit users that they want access to the materials without fear of copyright liability, but I think on the whole that they've been able to accommodate their needs with the uncertainties of the fair-use doctrine in a way that allows them to do what they have to do. We have not heard recently from the librarians on this score, and I think we've reached an accommodation that they know what they can do and what they can't do.
Senator DECONCINI. Your position is if a person wants to commercialize this use, they should get a license.
Mr. OMAN. That's normally the way the system works.
it's Senator DECONCINI. It would take a statutory act. Mr. OMAN. It would be a statutory act.
Senator DECONCINI. So the broadcast company or cable company, they could refuse the right to do that.
Mr. OMAN. They could refuse if the price weren't right or if they just didn't want to do it, if they wanted to reserve the market for themselves.
Senator DECONCINI. What is the one most significant aspect of the news monitoring service that, in your opinion, Mr. Oman, renders it ineligible for the fair-use defense in existing case law?
Mr. OMAN. Again, Mr. Chairman, it's hard to generalize, because so much of what they do is already authorized under the copyright law under the fair-use doctrine. But if they're going to be excerpting large segments of a news program, if they're going to be reproducing the entire segment of “60 Minutes," which is 20 minutes long, and sharing that with clients all over the world, I think that would be an example of the type of activity that is not authorized under the fair-use laws and probably shouldn't be, because that is potentially a commercial avenue of exploitation by, in the case of *60 Minutes," CBS broadcasting.
Senator DECONCINI. Does this really boil down to the commercial purpose? Is that the only issue, or am I missing anything else?
Mr. OMAN. That's what we're here to say, if there is a commercial purpose. If this were a professor at Vanderbilt excerpting news programs for study in the classroom, I don't think we would be here today.
Senator DECONCINI. If it were the library at Vanderbilt that was going to do it and make it available to its students at a charge from the standpoint of a university charge, would that be a violation?
Mr. OMAN. Then you get into a gray area. There's no bright line that separates one from the other. You have to look at all the factors, look at all the facts surrounding the use, and make a judgment.
Senator DECONCINI. If it was clearly a profit where they were going to put money into another program, then yes. If it was a fee to justify administrative costs or a tuition fee or something like that for the school, maybe not, huh?
Mr. OMAN. Or to enhance preservation of the documents.
Senator DECONCINI. Thank you, Mr. Oman, very much. Your testimony is very helpful.
Mr. OMAN. Thank you, Mr. Chairman.
Senator DECONCINI. Our next panel will consist of Robert Cohen, president of International Association of Broadcast Monitors; Hal Warner, president of Public Relations Society of America; Mr. Ray Patterson, Pope Brock Professor of Law, University of Georgia; and Ed Moser, president, NewsCount, Phoenix.
Gentlemen, if you'd please come forward, and we'll start with you, Mr. Cohen. If you would summarize your full statements will appear in the record, so if you would summarize them, please. STATEMENT OF ROBERT J. COHEN, PRESIDENT, VIDEO MON
ITORING SERVICES OF AMERICA, TESTIFYING ON BEHALF OF THE INTERNATIONAL ASSOCIATION OF BROADCAST MONITORS, NEW YORK, NY
Mr. COHEN. Good morning, Mr. Chairman. My name is Robert Cohen. I am president of Video Monitoring Services of America, and I appear today on behalf of the International Association of Broadcast Monitors, known as the IABM.
We're here today to express our strong support for S. 1805, which would clarify that monitoring broadcast news falls within the letter and the spirit of the fair-use doctrine of the copyright law. We applaud Senator Hatch for taking the initiative in this effort to protect the public's right of access to news programming. If I can convey one thought to the members of this committee today, I hope it is this: Without this legislation, the existence of the broadcast news monitoring industry in the United States is and will remain in jeopardy. Without our industry, the ability of the public to have access to news reporting about themselves and about issues important to them will be threatened.
We have turned to Congress for help because some broadcasters are suing news monitors for copyright infringement. In deciding these cases, courts are wrongfully—I repeat wrongfully-applying the fair-use doctrine in a way that threatens the news monitoring industry and the public's right of access to news programming. It is our position that if the courts would apply the fair-use doctrine to news monitoring as Congress intended, they would conclude that this activity falls well within the ambit of uses that Congress had thought should not be restricted by the copyright law.
Many people misunderstand what news monitors do. News monitoring allows the public to make discreet use of a portion of news programming broadcast over the public airwaves or transmitted via cable and other video services for the limited purposes of study, criticism, comment, and review. These kinds of activities are precisely what Congress intended to encourage when it codified the fair-use doctrine in the copyright law. Our services tell people, corporations, and institutions when they are on the news and what has been said about them. We make brief segments of the news available to our clients overnight so they can respond and react. Viewers aren't restricted by time or place to news monitoring aired in their own areas. They don't have to choose among only one of several news programs being aired simultaneously. In sum, news monitoring services have greater technological resources and national reach than any individual.
We simply do for our clients what our clients are legally permitted to do for themselves. We do not permit rebroadcast without the permission of the copyright owner. The core value of our service is not the provision of copyrighted material itself but the tracking and organizing of news segments broadcast across the country 24 hours a day. We provide an important public service not offered by the broadcasters themselves or any other archive or library service.
Nonetheless, following one eleventh circuit case, the Duncan case, several courts have held that broadcast news monitoring is not a fair use, primarily focusing on the fact that it is a commercial activity. These courts have created a virtual presumption that because our services are commercial, they can never qualify as fair use. Courts are not properly considering the other factors set out in the fair-use doctrine, including purpose of the use or the fact that we use a very small portion of the copyrighted work. Most importantly, courts are ignoring that our services, which are not provided by broadcasters,
have no effect whatsoever on the advertising and cable subscription market for news programming.
Clients of news monitoring services include the Federal Government, State and local governments, corporations, law enforcement and disaster relief agencies, market researchers, political candidates, universities, and individuals. In fact, some members of this subcommittee have used the services of news monitors to follow news coverage of their own campaigns or their opponents, or just to keep in touch with their constituents' needs and concerns. The service we perform is critical to an exercise of our clients' constitutional rights.
Mr. Chairman, we are the only means by which the public can exercise its right to know what is being aired about them and issues important to them and where. If our services did not exist, our clients would have to hire their own employees across the country to watch and record television 24 hours a day in order to have access to news programming about them or issues of concern to them. In most, if not all, cases, that's just not feasible.
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Although most broadcasters appreciate the role we play, we are the target of cease-and-desist letters, threats to sue us for infringing copyrights and news programming, and plenty of copyright litigation. This barrage places our companies and the service we provide to the public in severe jeopardy. We are turning to Congress because we have lost hope of obtaining relief from the courts. We had been hopeful after one appeals
court decision recognized that news monitoring can be a fair use. That decision, however, was recently vacated by an en banc panel of the same court on procedural, not substantive, grounds, and the underlying litigation continues.
S. 1805 is not radical legislation. It does not provide that all news monitoring under all circumstances at all times is a fair use. Rather, by adding the phrase “monitoring news reporting programming" to section 107, S. 1805 would clarify to the judiciary that news monitoring is just the kind of activity that the fair-use doctrine was designed to protect. This approach would still permit the courts to weigh the four fair-use factors in a particular case involving news monitoring. It is a sensible, fair approach to restoring the balance of power between broadcasters and the public.
I would like to stress, Mr. Chairman, that if we go out of business or our services are chilled, there is no alternative for obtaining information from news programming on an immediate, nationwide basis.
Thank you for inviting me.
STATEMENT OF ROBERT COHEN
Good morning Mr. Chairman and distinguished Members of the Committee. My name is Robert Cohen.
I am President of Video Monitoring Services of America, Inc., one of the largest broadcast monitoring organizations in the United States. I appear today on behalf of the International Association of Broadcast Monitors (IABM). The IABM membership includes over 50 commercial broadcast monitors from 22 states, Europe, Asia, Australia and Canada.
We appreciate the opportunity to testify today in support of S. 1805, which would clarify that broadcast news monitoring falls within the letter and spirit of Section 107 of the Copyright Act, or the fair use doctrine. 1 IABM applauds this legislation as an important and necessary effort to rectify a judicial misapplication of the fair use doctrine. Courts across the country have wrongfully interpreted the fair use doctrine in a way that threatens the broadcast news monitoring industry, and the public's interest in having access to broadcast news programming.
Mr. Chairman, s. 1805 would mitigate the threat we now face and restore a proper balance to the copyright law when applied to broadcast news monitoring.
Perhaps I should begin by clarifying what broadcast news monitoring services comprise. Broadcast news monitors track broadcast news programming and select and compile videotape segments or transcripts of news programming in which our customers have an interest. We can forward transcripts or video clips to clients on a same-day or overnight basis. In addition, we provide other services to our clients such as customized computer reports, indexing and transcription of relevant news segments. Through our services, the public can be made aware of and respond to news programming of specific concern, regardless of where the broadcast occurred. Ву using our services, viewers are no longer restricted by time or geography to news programming aired in their own areas, or to watching only one of several news programs aired simultaneously.
Broadcast news monitoring is increasingly important in a world dominated by the electronic news
17 U.S.C. § 107 (1976).