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Broadcast monitoring services are absolutely

invaluable to the federal government, corporations, advertising agencies, charitable organizations, libraries and universities, and individual citizens. Today, such services are used to follow the reporting of issues at the local and national levels, for law enforcement, to respond to negative or inaccurate reporting, for disaster relief, to monitor commercial advertisements and for preserving and studying the news.

By using broadcast monitoring services, viewers nationwide can stay on top of news programs, wherever they may be broadcast. No longer are viewers limited by time

or geography to stations in their own areas, or to

watching only one of several programs aired

simultaneously.

Broadcast monitoring services advance a core constitutional interest because they disseminate important information throughout the country and safeguard the

public's right of access to news programming. Yet, such services are now under attack. Claiming that monitoring

services infringe their copyrights in broadcast

programming, a vocal and litigious minority of

broadcasters are threatening

against

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commercial broadcast monitors. These stations

seek to stifle both broadcast monitoring services and the public's ability to watch, respond to and study the news. Moreover, broadcasters may not even own the copyrights in some of the programming that they air and that is monitored!

To date, broadcast monitoring services have relied on the constitutional balance of the copyright law to protect their interests and those of the public. Although copyright is intended to reward creators, its ultimate purpose is to ensure that works are made broadly available to the public. This goal is embedded in the Constitution, in the Copyright Act and, particularly, in the fair use doctrine of the copyright law.

By preserving news programs for later viewing and by diffusing them nationally, broadcast monitoring services have demonstrated repeatedly that they advance the constitutional and statutory goals of disseminating At the same time, monitoring services have

expression.

not the slightest negative economic impact on broadcasters or on their incentive to produce news or other

programming.

The underpinnings of the copyright law and the

fair use doctrine should, therefore, protect and encourage the development of monitoring services. As the Supreme Court decided in the Sony Betamax case, copyright law clearly permits individuals and corporations to monitor and record programming off-air. Monitoring services, with their greater technological resources and national reach, simply do for their clients what the fair use doctrine would otherwise permit them to do for themselves.

In recent decisions, however, some courts have misapplied the copyright law, as it was enacted by Congress and as it has been interpreted by the Supreme Court. These decisions refuse to recognize the realities of broadcast monitoring and fail to comprehend how it serves the public. By enjoining the legitimate and necessary monitoring services that the public demands, these courts are defying congressional intent and ignoring the public's interest in being able to monitor broadcast

information.

Now, only Congress can act to restore the proper balance between the public's right of access to broadcast programming and the incentives due to copyright owners. For this reason, the International Association of

Broadcast Monitors ("IABM") is asking Congress to amend

Section 107 of the Copyright Act to make clear to courts that the provision of broadcast monitoring services is a The IABM was formed in 1981 and is a broad

fair use.

based organization representing the community of interest in broadcast monitoring

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including fifty broadcast

monitoring services in 22 states and in Europe, Asia and

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heavily on monitoring services.

When it codified the fair use doctrine in 1976, Congress stressed that courts should interpret it with great flexibility, to accommodate inevitable and rapid technological changes. Certainly, as the Supreme Court has recognized, the video revolution represents one of the most profound technological changes of this century. Yet, some of today's courts seem mired in the past, elevating the claims of only a few broadcasters over the broader interests of the public in using broadcast monitoring services.

Congress should act to protect those interests and clarify the law to state that the monitoring of news programs, whether by an individual or by a service that monitors for individuals, is a fair use.

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the exercise of the right of an individual to have access to the information broadcast over the public airwaves. Exercising that right may mean not only watching a news program as it is aired, but capturing the program on video tape for review, comment or criticism. It also means the ability to monitor news programs aired in geographically remote areas, or at times of the day or week when on-air viewing is not possible.

The activities that comprise broadcast news monitoring are so essential to maintaining a free and well-informed society that we tend to take our right to monitor for granted. It is indisputable that the public has a constitutionally protected interest in knowing the content of news programming, and that, since the Sony Betamax case, individuals have a right to tape news programming off-the-air to view at a later time. It naturally follows, then, that the public has the right to engage broadcast monitoring services to ensure that it can meaningfully exercise its constitutional and statutory interests and rights.

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