expressly enumerated by Congress when it enacted the Copyright Act. Nevertheless, broadcast monitoring services are, and should rightfully be considered to be, fair uses. Broadcast News Monitoring Services Are A Fair Use Broadcast news monitoring services fall within the core of activities protected by the fair use doctrine. In fact, the ultimate purposes of monitoring are precisely those defined in the first sentence of Section 107: "criticism, comment, teaching " research. A searching analysis of broadcast monitoring services under the four factors set out in Section 107 demonstrates that news monitoring services are the type of activity that Congress intended the fair use doctrine to protect. 1. The Effect Upon the Potential Market for or The Supreme Court has held that the sole "purpose of copyright is to create incentives for creative effort. 114 Therefore, the most important element of any fair use analysis of broadcast monitoring services is 4. Sony Corp. of America v. Universal City Studios, whether they diminish the incentive of broadcasters to create news programming. Uses that have "no demonstrable effect on the market for, or the value of, the copyrighted work" need not be prohibited. 5 In such situations, no infringement need be found and no injunction need issue to protect the author's incentive to create. Because broadcast news monitoring services have no adverse economic impact on broadcast news programming, or on the incentive to produce a proper application of this factor cuts the news, strongly in favor of concluding that such services are a fair use. Producing news programming and providing news monitoring services are not the same business. Commercial broadcasters generate revenues from the news by producing programs that attract viewers, that increase audience shares and that enable them to sell advertising at rates that escalate with the size of the audience. Broadcast monitoring services, by definition, have no impact on the size of the broadcaster's audience. Furthermore, monitors do not sell advertising time because they do not rebroadcast news segments. Therefore, monitoring services do not compete with broadcast stations for audiences or for advertising revenues. They have no actual or potential negative effect on the market for, or value of, the advertising time sold by broadcast stations. For example, if a broadcast monitoring service in Texas provides a compilation of programs from Texas news broadcasts to a client in New York, the Texas news station has not been negatively affected in any way. The monitoring service did not cut into the Texas station's audience and did not siphon revenues that would otherwise have gone to the broadcaster. In fact, the Texas broadcaster may benefit from increased exposure to potential advertisers (who may be impressed by its news programming) who are geographically distant and temporally removed from the place and time of the broadcast itself. Moreover, broadcasters are not, and have no demonstrable interest in, exploiting the market for monitored broadcasts programming. They do not actively sell segments of their programs in their local markets, let alone nationally. They maintain no standing orders from clients nor do they monitor or log other stations' programs. Thus, broadcast monitoring services have no impact on any potential market that broadcasters might seek to enter. In short, broadcast monitoring services do not diminish in any way the value of or market for any broadcaster's news programming. 2. The Nature of the Copyrighted Work The Supreme Court has held that the fair use doctrine has its broadest application where informational, rather than creative, works are involved. In fact, the Supreme Court has acknowledged that "[c]opying a news broadcast may have a stronger claim to fair use than copying a motion picture."6 Similarly, the nature of a news program also argues in favor of finding that broadcast news monitoring services should be viewed as a fair use. o Factual material, such as much of the more susceptible to a fair use finding than o News is of public significance, and contributes substantially to public awareness and informed debate. 6. Sony, 464 U.S. at 455. o News programs, unlike works of entertainment, lose much of their value as soon as they are broadcast. The value of news lies in its timeliness; there is no significant aftermarket for news. o News programming is ephemeral; it becomes inaccessible immediately after it is broadcast. Congress specifically intended that the relative inaccessibility of a work to the public should be a factor in assessing whether users who reproduce such works are engaged in an activity protected by the fair use doctrine. In considering the fair use doctrine in 1976, the Senate Judiciary Committee noted that: [a] key, though not necessarily |