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media. Like newspapers and magazines, the broadcast news exercises enormous influence over public opinion. Unlike the print media, however, the broadcast news is ephemeral
it is not readily available for review, analysis or response. Before the advent of the videocassette recorder ("VCR"), the public had no ability to watch news programming at a later time or in a geographically distant location.
The VCR, a remarkable technological advance, has made it possible for an individual viewer to capture and review news programming. In the Sony Betamax case, the Supreme Court held that it is permissible for viewers to tape programming off-the-air for "time-shifting" purposes. Nonetheless, viewers are generally able to monitor programming only in their own communities. Broadcast news monitoring services with their greater technological resources and national reach simply do for their clients what their clients may, but usually cannot, do for themselves.
Broadcast news monitoring services are highly valued by a broad cross-section of the American public. Our clients include the federal, state and local governments, corporations, law enforcement and disaster relief agencies, market researchers, universities and individuals.
Political candidates are also major users of broadcast news monitors. They use our services to track television news coverage of their campaigns, of their opponents and to exercise their rights of equal opportunity to respond to their opposition. In fact some members of this Subcommittee use the services of broadcast monitors in the midst of a political campaign.
Mr. Chairman, broadcast news monitoring services advance a core First Amendment interest. They disseminate news to an interested public who would otherwise have no effective means of access to such information. They are the custodians of the public's right to know what is being aired about them, and where. Attached is a white paper that describes broadcast news
Sony Corporation of America v. Universal City
monitoring services and the copyright issues that they raise in more detail.
Briefly, in the copyright law, it is the fair use doctrine that balances these First Amendment concerns against creators' exclusive rights to exploit their works. Section 107 of the 1976 Copyright Act reconciles two sets of sometimes competing interests: those of creators, who need financial incentives to produce works, and those of the public, which needs access to and wants the broadest dissemination of information. Section 107 was carefully crafted to safeguard important creators' rights while protecting uses that further the First Amendment interest in reasonable access to copyrighted material.
3 The preamble to Section 107 contains an illustrative list of purposes, including scholarship, criticism and comment, that are the types of purposes for which uses of copyrighted works are presumed to be fair. Section 107 then sets out four factors that courts must weigh in determining whether a particular use of copyrighted material is fair.4 Congress intended courts
[i]n the balancing between the
H. Rosenfield, The Constitutional Dimension of "Fair
The four factors are: "(1) the purpose and character
to apply these factors on a case-by-case basis, giving careful consideration to each one. No one factor alone was to be dispositive.
Unfortunately, courts are ignoring the Congressional intent behind the careful formulation of the fair use doctrine. In cases where broadcast news monitors have been sued, courts have deviated from congressional intent by elevating one factor over the others to erect presumptions not found in the statute.
Although many of the segments from news programming that we disseminate on a selective basis to our clients are copyrighted, it is also true that many segments are not. It is also important to point out that most broadcasters recognize that we perform a valuable service, one that they are unwilling or unable to perform. Indeed, some refer business to us or even use our services themselves.
Some broadcasters, however, do object to broadcast news monitoring. They send us cease-and-desist letters and threaten to sue us. A few have sued us and won, on the ground that we infringe their copyrights in news programming. In these suits we have relied on the fair use doctrine for protection, without much success.
In one case, Pacific & Southern Co. v. Duncan5 the United States Court of Appeals for the Eleventh circuit held that broadcast news monitoring is not a fair use, primarily focusing on the fact that it is a commercial activity, and giving short shrift to the other factors. The Supreme Court denied certiorari in Duncan. Several lower courts have almost unthinkingly followed and applied the Duncan holding in other cases involving broadcast news monitoring, in altogether different factual or procedural contexts. They have ignored Congress'
and (4) the effect of the use upon the potential
Pacific & Southern Co. v. Duncan, 744 F.2d 1490 (11th cir. 1984), cert. denied, 471 U.S. 1004 (1985).
direction to weigh all four fair use factors. 6 The result is a virtual presumption that, because it is "commercial," broadcast news monitoring can never be a fair use.
The one judicial decision in favor of broadcast news monitors, an Eleventh Circuit decision that recognized that news monitoring could constitute a fair use, was recently vacated by an en banc panel of the same court. In that case, Cable News Network Inc. v. Video Monitoring Services of America, Inc., 940 F.2d 1471 (11th Cir. 1991), vacated and reh'g granted, 949 F.2d 378 (11th cir. 1991), the Eleventh Circuit recognized the extraordinary importance of news monitoring to the American public. It found that news monitoring services were an indispensable vehicle by which the public could have access to information disseminated by the electronic media.
The Eleventh circuit panel concluded, therefore, that the copyright law should be viewed through the prism of the First Amendment. As such, the panel concluded that news monitoring services were entitled to the protection of the fair use doctrine. It was the first indication, it had been hoped, of a reversal in the judicial trend toward what had been an overly restrictive misapplication of the copyright law to news monitoring services.
That decision, however, was vacated (on procedural, and not substantive) grounds. Cable News
See NBC Subsidiary (KCNC-TV) v. Video Monitoring
Network Inc. v. Video Monitoring Services of America. Inc., 940 F.2d 1471 (11th Cir. 1991), vacated and reh'g granted, 949 F.2d 378 (11th cir. 1991), 959 F.2d 188 (lith cir. 1992). Consequently, it is clear to broadcast news monitors and their clients that they cannot count on the courts for protection.
By focusing almost exclusively on the commercial nature of broadcast news monitoring services, the Duncan court and others have defied congressional intent. That a use is commercial is only one element of the fair use equation. ? The House Report accompanying the 1976 Copyright Act clearly stated that the language in Section 107 referring to whether or not the purpose and character of a particular use of copyrighted material is commercial was "not intended to be interpreted as any sort of not-for-profit limitation.
It is an express recognition that ... the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions."8
In creating a presumption against a finding of fair use based on the commercial nature of broadcast news monitoring services, Duncan and its progeny inadequately considered the public's constitutional right to receive information. These cases overlook the fact that broadcast monitors are critical to the exercise of that right. The attached paper analyzes the fair use doctrine as applied to broadcast news monitoring. Here, I will briefly discuss each of the four factors to demonstrate that enactment of the legislation that we are proposing is consistent with the language and spirit of Section 107.
The most important of the four factors is the effect of the use on the potential market for or value of the work. 9 The Supreme Court has stated that uses of copyrighted material that have no demonstrable effect on
Many commercial uses of copyrighted material
H.R. Rep. No. 1476, 94th Cong., 2d Sess., at 66