their releases are used, and to assess

their impact.

O Lawyers

Defense lawyers across the country

rely heavily on broadcast monitoring services to gauge the tone and level of local coverage of their clients' cases to determine if a fair trial is possible in a location.

o Public relations

Public relations firms use monitoring services to evaluate their success in bringing their clients' views to the public and to identify their clients' needs.

o Advertising agencies

Advertising agencies rely on

monitoring services to determine

market trends, to see the context in

which their clients' advertisements

are aired, and to ensure that

advertisements are broadcast in

accordance with agency-broadcaster

agreements.

Individuals

Individuals rely on broadcast

monitoring services for access to news
programming either about them or about
subjects of importance to them. of
all clients, individuals are the least
able to monitor news or other programs

by themselves on a nationwide basis.

II.

BROADCAST MONITORING SERVICES ARE PROTECTED BY THE
FAIR USE DOCTRINE OF THE COPYRIGHT LAW

Broadcast monitoring services and the public

they serve currently are under attack by some

broadcasters. These broadcasters claim that monitoring services infringe the exclusive right, under copyright law, to authorize reproduction of their news and other programming. In their own defense, broadcast monitoring services have relied on the fair use doctrine of the Copyright Act, to prove that monitoring services, like other fair uses, is not an infringement of copyright. date, some courts have sided with broadcasters. decisions, however, misunderstand and misapply the fair use doctrine. When correctly applied to broadcast monitoring services, the copyright law

These

То

and the fair use

To promote the Progress of Science
and useful Arts, by securing for

limited Times to Authors and Inventors

the exclusive Right to their

respective Writings and Discoveries.2

Congress gave exclusive rights to authors as an

incentive to create new works for the public good.

These

rights, however, can create a tension with other rights

-

Consequently, Congress and the courts have

developed, enacted and applied the fair use doctrine to harmonize the disparate interests of the public and creators of copyrighted works. The fair use doctrine is not, therefore, merely a statutory exception to the exclusive rights afforded by the Copyright Act.

Rather,

it is a necessary bulwark of our constitutional scheme, protecting the public's First Amendment interests from

2. United States Constitution, Art. I, Section 8.

unjustified and overreaching assertions of exclusive rights by copyright owners.3

When it enacted the Copyright Act of 1976,

Congress decided that it was important to codify the longstanding common law doctrine of fair use. See 17 U.S.C. § 107. Section 107 of the Copyright Act states that certain uses of copyrighted material for important public purposes such as "criticism, comment, news reporting, teaching,

scholarship or research" are not

infringements of copyright. Congress described Section
107 in the legislative history accompanying the Act as
"one of the most important and well-established
limitations on the exclusive rights of copyright owners."
H.R. Rep. 1476, 94th Cong., 2d Sess., at 65 (1976).

In Section 107, and after listing examples of certain types of "fair uses," Congress set out the factors

[i]n the balancing between the constitutional
right of access through fair use and the copy-
right law, the balance must tilt toward the
constitutionally protected right to reasonable
access. Fair use is the vehicle for

effectuating this constitutional protection for
the primacy of the public interest over the
interest of the copyright proprietor.

H. Rosenfield, The Constitutional Dimension of "Fair
Use" in Copyright Law, 50 Notre Dame L. Rev. 790 (1975).

for determining whether a particular use of copyrighted

material is a fair use. These are:

17 U.S.C. § 107.

(1) the purpose and character of the use,

including whether such use is of a

commercial nature or is for nonprofit

educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the

portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the

potential market for or value of the

copyrighted work.

The legislative history of the Copyright Act makes clear that while "[t]he bill endorses the purpose and general scope of the judicial doctrine of fair use," there "is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change." H.R. Rep. 1476, 94th Cong., 2d Sess., at 66 (1976). Thus, Congress intended that the fair use doctrine be flexible enough to protect new technological uses of copyrighted works. VCRs were quite rare in 1976. Thus, an important, productive and beneficial purpose for