S. Rep. No. 473, 94th Cong., 2d Sess., at 64

(1976).

3. The Amount of the Copyrighted Work Used

Broadcast monitoring services record news and

other programming in order to compile brief segments from various broadcasts; they do not, except in highly unusual

cases, use entire or even substantial parts of news

broadcasts.

Clients are not interested in the portions of news reports unrelated to them. One of the most valuable aspects of monitoring services is that they screen irrelevant information and compile only what is directly related to clients' interests. This fair use factor, then, weighs strongly in favor of broadcast monitoring. 4. The Purpose and Character of the Use

Perhaps the strongest argument in favor of

finding broadcast monitoring services to be a fair use is that the purposes for which the videotapes of monitored programs are used fall squarely within the core of the doctrine: compilations and clips are used for comment, research, criticism and education. As described above, many clients use broadcast monitoring services to follow coverage about their activities, to make sure that the media fairly represents them and their views to the

public. The legislative history of the Copyright Act

states that:

[w]hen a copyrighted work contains
unfair, inaccurate or derogatory
information concerning an individual
or institution, the individual or
institution may copy and reproduce
such parts of the work as are

necessary to permit understandable
comment in the statements made in the

work.

H.R. Rep. No. 1476, 94th Cong., 2d Sess., at 73 (1976). Broadcast monitoring services are the vehicle by which clients can perform precisely this "monitoring" or "checking" function on a nationwide basis. On their clients' behalf, and at their specific request, services, as their designated agents, copy, compile and log when they are themselves unable to view all possible programs of interest or relevance.

That monitoring services charge a fee does not mean that their services are not a fair use. The commercial nature of a use is only one aspect to be considered in analyzing the purpose and character of the use. In fact, many fair uses of copyrighted material are for commercial purposes, such as parody, satire, literary or artistic criticism, and biography.

The House Report accompanying the Copyright Act stated that the language in Section 107 referring to

whether the purpose and character of the use of
copyrighted material is commercial or not

is not intended to be interpreted as
any sort of not-for-profit limitation
on educational uses of copyrighted
works. It is an express recognition
that, as under present law, 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

H.R. Rep. No. 1476, 94th Cong., 2d Sess., at 66 (1976). Broadcast monitoring services could not provide their services on a non-profit basis. They, like many other users of copyrighted material, must charge their clients. In the case of monitoring services, the fee that they charge is set at a level that demonstrates that clients are willing to

-

and do

pay for a service

package that offers much more than the mere reproduction

of a broadcast program.

In summary, a proper application of the four factors of Section 107 demonstrates that broadcast monitoring services are precisely the type of activity Congress wanted to protect by codifying the fair use doctrine.

o News monitoring services do not have

any negative effect on the actual or

potential market for or value of news

programming;

o News is of significant public

interest and monitoring enables

clients to review and analyze other

wise ephemeral news programming;

o Monitoring services use only

insubstantial portions of news programs;

and

o The ultimate uses of compilations of

programs are educational and for

comment, analysis and research.

III. BROADCAST MONITORS AND THE PUBLIC'S ACCESS TO
BROADCAST NEWS ARE UNDER ATTACK

Broadcast monitoring services play an integral

role in the broad dissemination of news and other public

affairs programs.

Recognizing this fact, most

broadcasters have excellent working relations with the broadcast monitoring services that serve their

communities. Indeed, many refer viewer requests for program segments of recent broadcasts to monitoring services. In this way, broadcasters and broadcast monitoring services together ensure that the demand for

:

both immediate news by local audiences and for archival

footage by a national audience is wholly satisfied.

This system for meeting society's need to

monitor and have access to broadcast information is now under attack. Some broadcasters are bringing

and

winning lawsuits for copyright infringement against news monitoring services. In recent years, suits have been filed in Atlanta, Los Angeles, Houston, Minneapolis, Denver, and other cities. Many of these cases have been settled; some have been lost by monitoring services ; others are on appeal. A great many more broadcasters, spurred on by the success of this increasing flood of litigation, have sent cease and desist letters, demanding that monitoring services refrain from taping their

programs.

Broadcast monitoring services, facing these threats, are forced to choose between abandoning their businesses and time-consuming, expensive litigation. They believe that they are acting lawfully and that providing monitoring services, when properly understood, is a fair use of broadcasters' copyrighted material and not copyright infringement. Nevertheless, many services believe that actual or threatened litigation may compel them to leave the business.