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Senator DECONCINI. Thank you, Professor Patterson.
STATEMENT OF ED MOSER, PRESIDENT, NEWSCOUNT,
PHOENIX, AZ Mr. MOSER. Good morning, Mr. Chairman and distinguished members of the committee.
Senator DECONCINI. Do you have a statement? We never received one, Mr. Moser.
Mr. MOSER. I have an oral statement, yes, sir.
copy of it?
Mr. MOSER. An oral statement.
My name is Ed Moser, and I am founder and president of NewsCount, the largest full-service broadcast news monitoring service in the State of Arizona. I am also president of the International Association of Broadcast Monitors. I want to address why this legislation is as important to our clients and the public at large as it is to us.
It is a cliche, but nonetheless true, that we live in an information age. We are bombarded 24 hours a day on television, on cable, and on radio. One might think that in this world everyone has access to information at all times. We do, and yet we don't. What is crucial is having access to the information that is important to us at the time when it becomes available. In the glut of information, it is easy to miss news programming about us or about issues that we think are important. If we miss a favorite entertainment program, we can read a book or wait for a summer rerun, and chances are if we really want to see it, we can, because we know when and on what channel it will be aired. But if we miss the broadcast news, we are at a real disadvantage. There are no summer reruns. The value of news, however, and the need to respond to news are immediate. If we have to wait for reruns, it is too late.
This leads me to two important facts about the broadcast news that make enactment of S. 1805 critical. The first is that the news is a very—perhaps the most powerful influence on public opinion. People tend to believe what they hear or see in the news. This is particularly true of broadcast news, where visual images accompany the familiar voices of trusted anchorpersons.
All of us now recognize that media stakes need to be taken seriously. A bad remark to a news representative that is aired live and in living color can plummet stock, can hamper sales, can destroy market plans, and can even put a spokesperson's job at risk. Vigorous news reporting should continue. It is an indispensable part of a working democracy. However, for democracy to work, we need access to that information. Without news monitors, there is simply no way in which the public can retrieve the information that is reported about us.
The second fact of broadcast news is that it is ephemeral. Once it is aired, it is gone. If you do not happen to be tuned to the right channel at the right time, you will miss it.
The news is aired 24 hours a day on innumerable channels across the country. Individuals, companies, politicians, government agencies all want and have a constitutional interest in access to news shown on the public airwaves or in programming for which they have paid. Yet they are unable to be at all places at all times watching all channels simultaneously.
As a result of the power of the news media and the development of relatively inexpensive equipment capable of recording television programming, a demand was created for services that monitor the news all day long across the country. Broadcast news monitors meet that legitimate demand. They are essentially an electronic clipping bureau borne from the high-technology information age. Actually, I don't consider myself a monitor, but rather an information retrieval specialist. News monitoring helps to balance the power that seems to tilt so heavily in the favor of the electronic news media. It helps us come to grips with the flood of information that confronts us each and every day.
I would like to stress that most broadcasters around the country believe that broadcast news monitors provide a useful compliment to real-time, over-the-air broadcasts. I personally have a very good relationship with broadcasters in my area. Indeed, they often refer requests for clips of news programming to me. They are responsible broadcasters who serve their communities well and who do not begrudge the public the right to have access to their news programming. However, some broadcasters do object to broadcast news monitors making available segments of news programming to our clients.
Broadcasters control not only the contents of news programming, but also the distribution. That is a lot of power to be concentrated in the hands of a few. Such TV media clout and the attendant hard-line position on the issue somewhat smacks of journalistic self-interest. It is ironic to me that some in the electronic media, which rely so heavily on the first amendment to produce and air news reports, seek to restrict the public's countervailing constitutional interest in having meaningful access to news programming.
The IABM strongly urges Congress to enact S. 1805 to protect the public's right of access to news programming and to restore the proper balance between the interests of news broadcasters and the public.
Thank you for inviting me to testify before you today.
Senator DECONCINI. Thank you, Mr. Moser. We're very pleased to have your testimony.
Let me just pose some questions, first to Mr. Cohen.
What's the gross revenue produced by the video monitoring service industry, Mr. Cohen?
Mr. COHEN. I would estimate the total gross revenue is about somewhere in the neighborhood of $50 million. Rather small.
Senator DECONCINI. I guess it depends on how you look at it. Do you have examples where attempts have been made to get a license from a broadcaster or a cable broadcaster and have been refused?
Mr. COHEN. Yes. Senator DECONCINI. Would you supply us a list of such examples?
Mr. COHEN. Yes.
Senator DECONCINI. The specifics and when they happened?
Mr. Warner, same thing with you. Do you have such examples where there's been an attempt to secure licenses and they have refused to do so?
Mr. WARNER. Actually, I can't say licenses. We have had numerous situations when we've tried to get tapes from broadcasters where we've been refused the tapes.
Senator DECONCINI. Thank you.
Mr. Cohen, you state that news monitoring services have no negative effect on any potential market for broadcasters. However, don't some of the broadcasters offer their own news clipping services?
Mr. COHEN. No, sir, they do not. They offer the ability to access a tape if you know that you've been on the air. There's a very definite difference between having tape available and being a news monitor. Case in point: If you are a station in Phoenix, AZ, in order for you to be in the monitoring business, you would have to record every single station in Phoenix, you would have to look at all of the news every day, you would have to put that information into your computer, sort it, analyze it, do all of the things that are necessary to feed back to your client that he or she has been on the air. Broadcasters do not do this, cannot do this. All they say, some of them, is that “If you want a tape, call us, and maybe in 3 weeks we'll get the tape out to you”. I use the word "maybe”. That's not monitoring. That's providing a tape.
Senator DECONCINI. Well, if they provided a monitoring service as you described, it seems to me it would have some economic benefit to them.
Mr. COHEN. If they did, but if they provided a monitoring service, they would have to do what we do, record other stations, and then in essence they would be sitting here asking for S. 1805.
Senator DECONCINI. Well, there's no reason ABC nationally couldn't monitor ABC, and if candidate DeConcini or pharmaceutical company Mercx Co. wanted to hire and pay ABC a fee for every time the name was mentioned on the air, they could do that, couldn't they, and sell it to a legitimate client?
Mr. COHEN. In essence, that's correct. However, Mercx would in essence need to know ABC, CBS, NBC, CNN, et cetera.
Senator DECONCINI. Sure, so they'd have to go to all the stations.
Mr. COHEN. So they would all have to do it in order to be competitive in the marketplace.
Senator DECONCINI. Professor Patterson, I'm interested in your approach to this that the courts don't understand the copyright laws. Sometimes I agree with that and sometimes I don't, depending on how the decision comes down. Sometimes I think they're geniuses, particularly if they agree with my position on legislation I've enacted; other times I think they don't understand it at all. What about a distinction of a news conference or an interview of a public official—that is, Ross Perot, Bush, or Clinton—versus an example where a broadcaster has put in a tremendous effort to record a longstanding news event, like CNN with the Persian Gulf war?
Mr. PATTERSON. Yes, sir.
Senator DECONCINI. Now, I see a distinction, I think, and the distinction, part of it, is that this goes way beyond just reporting what's going on in Baghdad or Kuwait today. What they did, because I watched a lot of it, were in-depth reports. They did background pieces and history of the countries and then the troops moving, and so forth. Now, you know, doesn't that have some copyright benefit, the fact that they invested and did something in addition to just reporting the 3 minutes of nightly news on the Persian Gulf war?
Mr. PATTERSON. Yes, it does, Mr. Chairman, and if I may, let me explain. What CNN has done in that circumstance is to invest labor and capital in gathering public domain information. Now, the copyright law does not give them an unlimited copyright
Senator DECONCINI. Well, wait a minute. Wait a minute. You don't think there's any intellectual originality of a producer of the Persian Gulf series by CNN that he or she had to think, “Let's see, what do we want here? Do we want to show nomads in history, or do we want to show the Iran-Iraq war, and what can we put together of it?” That isn't intellectual property?
Mr. PATTERSON. If I may explain, sir-
Mr. PATTERSON. What we're dealing with in a newscast generally is a compilation. Now, there are three types of copyrightable works under the Copyright Act: wholly original works under section 102, and compilations and derivative works under section 103. Now, the scope of copyright protection varies for each one of these works. A work is entitled to copyright protection only to the extent of its originality. A news broadcast is basically a compilation of news stories that consists of a compilation of facts. So you have two kinds of copyrights quite often involved in a newscast. You have a section 102 copyright and you have a section 103 copyright.
For example, in the Pacific & Southern case, the only copyrightable work that was directly in issue was a feature story on the Floyd Junior College fitness trail, clearly a piece of fluff. That piece of fluff was entitled to a section 102 copyright, but it was a part of the news broadcast that was a compilation entitled only to a section 103 copyright.
Senator DECONCINI. So which one governed? Section 103 only?
Mr. PATTERSON. Section 103 should have governed in that case, because what the court did was to say “The monitor has infringed the 102 copyright, so therefore, we give the station an injunction to protect all of its 103 copyrights.
Senator DECONCINI. So there is nothing under 102 that should be protected, your testimony is, under 103. So anything that they take that is protected under 102, if they incorporate it in “news, then it should not be protected.
Mr. PATTERSON. Right. Well, it's protected under 103.
Senator DECONCINI. Now, where do documentaries fall into that? Are they 102, 103?
Mr. PATTERSON. A documentary could be either one, Senator. It could be a 102 or a 103 copyright. Now, part of the problem here comes in when you have the same copyright owner owning both the 102 and the 103 copyrights. The court, particularly in the Duncan case, simply treated them as all being entitled to section 102 protection. What the court didn't realize is that coownership of both copyrights did not enlarge the scope of protection for either, and I'm comforted in my position by the recent Supreme Court decision in Feist.
In Feist, the Court pointed out that originality is a constitutional requirement for copyright protection and that the copyright protection for compilations is basically thin protection, because copyright protects only to the extent of the originality involved. And as Justice O'Connor pointed out, it may seem unfair that someone can take the products of another's labor without paying them, but that is the essence of copyright and, Justice O'Connor said, is a constitutional requirement.
Senator DECONCINI. Well, yes, I understand that, but you're telling me, I think, that the commercial nature of the use of the copyright work should not be given any significant weight. Is that right? Under the fair-use doctrine.
Mr. PATTERSON. No, sir. No. Senator, I think that certainly the commercial use is a factor to be considered, but what you have the courts doing in the past is giving weight to the commercial use of what we call sweat-of-the-brow works—that is, sweat-of-the-brow works are not entitled to copyright protection.
Senator DECONCINI. Well, I find that distinction really hard to draw except on a case-by-case basis if you really can show that the news is just the product of a news agency reporting the news on the gulf war, but you make it very clear that there is an intellectual part of it that ought to have some intellectual protection if it's used commercially by others.
Mr. PATTERSON. Well, sir, if I may explain a little bit further, clearly a news broadcast is entitled to copyright protection, and I think the real issue comes down to what constitutes a fair use, and my basic point is that the more limited the copyright protection accorded to a work, the broader the scope of fair use.
Now, I'm amused by the emphasis the courts give to the commercial use that news monitors make of newscasts. The point here is that the television stations don't make any commercial use of the video clips as a general rule. In fact, the stations erase the video tapes of the newscasts. In Pacific & Southern, for example, the station's practice was to erase the video tape of its newscast every 7 days in order to reuse the tape. And in the hearing in that case, the news director admitted that there was not economic harm, that they simply had a copyright here and they wanted to protect their copyright.
Senator DECONCINI. One last question for you, Mr. Patterson. Do you agree with Mr. Oman that the mentioning in the preamble in the present law and if we adopted S. 1805 is not a presumption, it's only a reference for the court?
Mr. PATTERSON. Yes, Mr. Chairman, I would agree with that with this qualification: I think, again, that the courts are unduly impressed by the examples that are listed in the preamble.
Senator DECONCINI. And that's why you all want it in here.