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services that Congress intends for courts to regard as

fair uses. It would explain, for example, that just as individuals have the right to monitor, so, too, can they

engage monitoring services to monitor news programming on

their behalf.

The legislative history could also be used to

clarify the bounds of the fair use doctrine as applied to

monitoring services.

For example, the reproduction and

sale of entire works of pure entertainment programming

might not be generally regarded as fair. Furthermore, the legislative history could reaffirm that ultimate decisions

on the application of the fair use doctrine and the

factors set out in Section 107 to particular activities of monitors are to be made by the courts on a case-by-case

basis.

Both the practical and flexible nature of the

fair use doctrine make it appropriate for Congress to

amend Section 107 so that "monitoring news reporting

programming" is a purpose for which the activities of

news monitoring services should be regarded as fair.

When

Congress first codified the doctrine in 1976, it expressly

recognized that fair use should be adapted to

technological developments.

In particular, the House

Report accompanying the 1976 Copyright Act stated "there

is no disposition to freeze the doctrine in the statute,

especially in a time of rapid technological change."

Since 1976, the demand for broadcast news

monitoring services has grown rapidly as news reporting

has become central to our lives, to our businesses and to

the way we vote.

Technological advances

the VCR

have made it possible for the public to monitor, review

and respond to news programming wherever and whenever it may have been disseminated electronically. Monitoring services are the only practical means by which

individuals can exercise their rights to see and respond

to geographically removed, or yesterday's, news

programming.

s. 1805 is a narrowly drawn, workable solution

to the threat now being posed to the public's right to

monitor news programming.

It does not expand the scope of

the fair use doctrine.

Nor does it alter the existing

structure of the Copyright Act or the balance of rights between the public and the copyright owner. By enacting the amendment, Congress will recognize that there must be

some mechanism for the American public to monitor the

news.

In this way, Congress can restore the

constitutional balance of rights between the public and

the producers of news programming and further the purposes

embedded in the copyright law.

Senator DECONCINI. Thank you, Mr. Cohen.
Mr. Warner.
STATEMENT OF HARLAND W. WARNER, PRESIDENT, PUBLIC

RELATIONS SOCIETY OF AMERICA, WASHINGTON, DC
Mr. WARNER. Good morning, Mr. Chairman. I am Hal Warner,
and I'm president-elect of the Public Relations Society of America.
PRSA is the largest public relations professional association in the
United States, with more than 15,000 members. Our membership
is very diverse, representing the professionals within the public re-
lations departments of many Fortune 500 companies as well as
members of independent public relations counseling firms, associa-
tions, and nonprofit organizations.

PRSA is pleased to have the opportunity to testify today in support of S. 1805. We urge Congress to act quickly to adopt this legislation. It would protect not only the rights of news monitoring services, but would also protect the rights of our clients to have access to news programming about them and of interest to them.

Our members and our clients depend heavily on the news monitoring services. They rely on their internal public relations departments or on outside counseling firms to provide them with information about what is being said in the news about them and about the issues that are important to them. Clients and members use this information for a wide variety of purposes. For example, they use it to assess the success of various communications initiatives. We use the services to measure the success of our own video news releases and to check on how our advertisements are placed in the electronic media.

I should note that with respect to both video news releases and commercials that we produce, we or our clients own the copyrights.

We use monitors to track how the media are covering particular industry sectors. We need broadcast monitors to respond to news conferences of our clients' competitors, to assess media reaction to stories about clients, to formulate and critique market or product strategies, and just to keep an eye on the competition.

Clients include many political figures and candidates. They rely on us to provide them with information about news reports concerning them, their constituencies, and their campaigns. We could not provide these services without news monitoring services. News monitoring services are indispensable to achieve this information for our clients quickly. One of the most important functions of news monitors is to let our clients know exactly—and I emphasize exactly—what was said on news programs around the country so that we do not need to rely on second- or third-hand information. That makes our clients' ability to respond more accurate and more effective.

The American public also benefits from clients' immediate access to nationwide news programming, especially in times of crisis when their ability to respond immediately is critical to protect lives. This is particularly true in crisis situations or in product safety cases, such as recalls or defective products. I can vouch for the importance of news monitors firsthand, as the product safety area is one in which I am personally involved. We rely on news monitoring services to tell us how effective our media efforts are in alerting the

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public to possible dangers. Only through news monitors can we know if the news programs are carrying enough detail so that consumers can know whether or not they have a defective product and, if so, what to do about it.

As you can appreciate, we need the information immediately or on a daily or overnight basis. News monitors can and do provide that service. If news monitors were to be put out of business, and I understand that's a real threat, our ability to respond to such crises would be severely diminished.

We have tried to obtain information from broadcasters themselves. They may, in some cases, be willing to provide us with relevant segments of news programs, but more often they are not. It is critical for this subcommittee to understand that even when broadcasters are willing to help us out, they are just not set up to respond quickly enough to meet our clients' needs.

In short, for public relations professionals, news monitors are a vital tool of the trade. Without the services of news monitors, we just could not do our jobs, and our clients would suffer. As agents of our clients, we have a legal right to tape news programming seg. ments for our clients, but it would be utterly impractical and prohibitively expensive for us to send our employees to every city and State to watch and record the news.

As important as the practical reasons why we support this legislation is the fact that PRSA and many of our clients strongly believe that news monitors should have the right to provide us with small segments of news programming. As a public relations professional, I am very aware of the profound impact that the electronic media has on public opinion in our country. It is only fair that our clients have the opportunity to review, to study, and develop responses to video tapes of news segments that relate to them or issues that are important to them. That is what the fair-use doctrine, as I understand it, is all about. It is about identifying fair uses of copyrighted material that do not affect in any way the copyright holder's market for their product.

Our clients do not sell or rebroadcast the clips that news monitors provide them. They use them to be fully informed about what is being reported in the news about them, and since it is impossible for clients to collect information for themselves, they rely on news monitors to do that collecting for them. That is, to me, fair. To me and my colleagues and to our clients, it would be unfair if copyright holders had the power to deny us the opportunity to learn about and respond to information that is being conveyed to the public as news. It is even more unfair that broadcasters could prevent us from tracking or tracing the media placement of video press releases or advertisements in which they do not have any copyright interest.

That is why PRSA supports S. 1805. It would restore the balance of power between our clients and the news media that some courts have upset by their recent decisions on news monitoring services. It would remind courts that while the rights of those who produce news programs are very important, the rights of their subjects should not be treated so cavalierly.

Thank you for this opportunity to testify. I'd be glad to answer any questions.

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