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Senator DECONCINI. Thank you, Mr. Warner.
Professor Patterson.


OF LAW, UNIVERSITY OF GEORGIA, ATHENS, GA Mr. PATTERSON. Mr. Chairman, thank you very much for the opportunity to appear here this morning. I have submitted a brief statement, and I apologize for not being more complete, but the invitation to testify came as I was preparing to leave for Arizona to visit my new and first grandchild, who was born in Kingman.

As I said in my statement, passage of S. 1805 is necessary not to change the law, but to clarify it for the courts. I am convinced that courts simply do not understand the Copyright Act, and I have recently prepared a brief in a case in which I am counsel—I might add, acting on a pro bono basis dealing with this issue, and with the chairman's permission, I would like to submit a copy of this brief for the record, because it explains in some detail my position that the leading case in this area, Pacific & Southern against Duncan, was wrongly decided.

I realize that Justice Holmes said law is what the courts say it is, but in regard to copyright, courts should say the law is what Congress has said that it is, and that is not what the courts are doing in this area. To illustrate my point, as I was preparing to leave yesterday to take my flight to Washington, I was watching Governor Clinton on the “CBS Morning Show." Since I had to leave before the show was over, it occurred to me that if I were in Atlanta rather than Arizona and had wanted to order a clip of Governor Clinton's appearance on the “CBS Morning Show," a monitor in Atlanta who provided me with a copy of that clip, under the law of the eleventh circuit, would be violating and infringing the copyright.

The same is true of Ross Perot on CNN and President Bush's televised news conference. When the American public cannot have access to what candidates for the Office of President have to say over the public airwaves, something is wrong, and what is wrong is the eleventh circuit's interpretation of the fair-use doctrine with regard to news monitors, because what the eleventh circuit did was provide the television stations with unlimited copyright protection for their news broadcasts aired over the public airwaves. The copyright statute provides only limited protection, and here you have a court giving unlimited copyright protection.

Now, I have great respect for Mr. Oman, the Register of Copyrights, but I read his statement that he submitted to the subcommittee dealing with the Pacific & Southern case, WXIA against Duncan, and what Mr. Oman did not understand was that the court, in granting the injunction in that case, gave perpetual copyright protection, unlimited in nature, to protect uncopyrightable as well as abandoned material, and this is wholly contra to what the 1976 Copyright Act provides. It is going wholly contra not only to the statute, but to the copyright clause of the Constitution.

As Barbara Tuchman said, the basic duty of governance is to heed information, but there is information and there is information. CBS, NBC, ABC, CNN all provide different kinds of information and often different information about the same topic. In this day of television news, the news monitor has a major role in providing access to information that both voters and public officials must have in order to know what information to heed. Passage of S. 1805 will go a long way to ensure continued access to news reports by members of the American public.

Thank you, Mr. Chairman.
[The prepared statement of Mr. Patterson follows:)





S. 1805

JUNE 16, 1992

Chairman DeConcini and members of the Subcommittee, I am

deeply grateful for the opportunity to appear before you today in

your consideration of s. 1805.

If I had to state the reason for my support of s. 1805 in

one sentence, it would be this: Passage of the bill is necessary

to clarify the law because, as related to news monitors, courts

have consistently misinterpreted the Copyright Act.

The leading case on the activities of news monitors is

Pacific & Southern d/b/a WXIA-TV v. Carol Duncan, d/b/a TV News

clips, 744 F.2d 1490 (11th Cir. 1984) (WXIA).

WXIA erases the

videotapes of its newscasts every seven days in order to reuse

the videotape. For example, this Monday's noon newscast will be

recorded over last Monday's noon newscast. The station was not in

the business of selling videoclips, although it would sell a

videoclip upon request. Since it erased the videotapes of the

newscasts within seven days, it did not, of course, register the

copyright of the newscasts. In fact, to bring its infringement

action, the station had to register the alleged infringing clip,

which the buyer had purchased for it.

The Eleventh Circuit directed the district court to enter a

permanent injunction. The district court entered the injunction and refused to exclude either uncopyrightable or abandoned

material. The result is a

udicially created copyright that

clearly disregards both provisions of the Copyright Act that

congress has enacted and the copyright clause of the


The statutory scheme of copyright is subtle, but clear. The

Copyright Act limits copyright to original works of authorship, s

102(a), precludes copyright protection for ideas, $ 102(b); limits the rights of the copyright owner to five rights, S 106; provides for the fair use of copyrighted works, S 107; and

separates the right to copyright, s 102(a), from the right to a

remedy for copyright infringement. & 411. Moreover, in its recent Feist decision, the Supreme Court made clear that originality in

a constitutional requirement. Feist Communications, Inc. v. Rural

Telephone Service, Inc., 111 s. Ct. 1282 (1990).

The injunctive relief granted in WXIA not only disregards the constitutional requirement of originality, it also makes a mockery of all of the statutory provisions listed above. The WXIA court even disregarded the fact that "Copying a news broadcast

may have a stronger claim to fair use than copying a motion

picture." Sony Corp. v. Universal City Studios, Inc., 464 U.S.

417, 455 n. 40 (1984). Two examples that the Court used in Sony

are "a legislator who copies for the sake of broadening her

understanding of what her constituents are watching; or a

constituent who copies a news program to help make a decision on

how to vote." Id.

The problem of fair use may be a complex one generally, but

as to news reports, it involves first amendment considerations as

well as copyright considerations and is simple: all news reports should be subject to a very broad fair use. When one considers

that television stations regularly destroy the videotapes of

their newscasts, it is clear that a news monitor causes them no

economic harm and that their only motive can be to control access

to the news they report over the public airwaves. I believe that

the first amendment not only protects the right of the press to

report, but also the right of the public to read--that is, it

encompasses the right of public access to news reports.

I regret to say that WXIA is not unique in that district courts often misconstrue the Copyright Act. Being courts of

general jurisdiction, dealing with matters that cover the whole

of law, the courts have neither the time nor the inclination to

read the Copyright Act and give it the attention that it requires

if it is to be interpreted properly. Adding to the problem is the

fact that plaintiffs are represented by members of the copyright

bar; defendants are usually represented only by litigators, who

lack expertise in copyright law. Men

of the copyright bar, of

course, seek to serve their clients, and serving their clients

requires as broad an interpretation of the Copyright Act as they

can reasonably foist upon the courts.

My own view is that the most efficient way of dealing with this problem is to amend Section 1 07 as s. 1805 provides.

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