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 necessary to permit understandable 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 is not intended to be interpreted as 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 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. |