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exempts news disseminators from laws of general applicability whether found in the tax code, the Fair Labor Standards Act, or

the Copyright Act

nor grants broadcast monitors unrestrained

and unlicensed access to copyrighted materials.

We believe, of

course, in the first amendment right to speak, publish, and

broadcast.

But we also believe in the protection of intellectual

property.

One right need not trump the other.

To date, the delicate balance between public access and

copyright protection has been successfully maintained by a combination of statutory rights, court-made safe harbors for non-commercial video monitoring, and voluntary negotiations

between news producers and broadcast monitors.

Federal law

already provides for public access to broadcast news clips through the fair use doctrine and several specific statutory exemptions for video archiving and use. Similar arrangements

have accommodated the growth of other services that duplicate

copyrighted materials and exploit them for commercial purposes;

there is no reason to believe that the same process cannot work

here.

These avenues of access not only demonstrate the adequacy of

current law but the danger of a "corrective" measure, such as

s. 1805, which attempts to bring broadcast news monitoring within

the protection of the fair use doctrine.

There is simply no way

to characterize the commercial activities of video monitors as

fair use.

Although a majority of the U.S. Supreme Court held in

Sony that noncommercial use of a VCR for time-shifting purposes only may qualify as fair use, both the majority and dissent

unanimously agreed that commercial use of the VCR for distribu

tion of programs belonging to others cannot be justified. Further, the monitors' activities fall afoul of fair use doctrine in that they simply reproduce the works of others wholesale,

rather than adding their own commentary, analysis, or other productive component. In short, the only result of the monitors' activities is to destroy an ancillary market that otherwise would inure to the benefit of the copyright owner who creates the

subject newscast in the first place.

The relationships between broadcasters and monitors are still developing. As the industry continues to grow, and as news producers and news monitors establish long term and mutually

advantageous commercial relationships, it will become even easier

for consumers to enjoy quick access to this vast pool of

information. But for this to happen, both parties must come to the table. When one party claims that the "fair use" doctrine obviates its need for a license, negotiations are not likely even to begin.

Thank you for the opportunity to present these views.

I

would be happy to answer any questions you may have.

PREPARED REMARKS OF DAVID NIMMER

IRELL & MANELLA

LOS ANGELES, CALIFORNIA

SUBMITTED ADJUNCT TO TESTIMONY

BEFORE THE

SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

JUNE 16, 1992

Turner Broadcasting System has asked me to appear today in

order to share my views with the subcommittee.

I greatly

appreciate this opportunity to address the application of the fair use doctrine to news monitoring services and to provide the subcommittee with some specific comments on s. 1805.

CNN

Turner Broadcasting produces Cable News Network which provides comprehensive reporting of domestic and international news, sports, business and weather, plus original analyses and commentary. As a separate service, Turner

Broadcasting also offers Headline News, a cable news service

which delivers 30-minute, concise news updates each day, around

the clock.

These services reach over 130 nations and

approximately 100 million households.

At the outset, let me make clear that my own view, as well

as that of Turner Broadcasting, is in agreement with the

proposition that the public benefits from ready access to news and information. Both CNN and Headline News were founded to meet

a public need for instant access to broadcast and analysis of

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advances the democratic process; it elevates the level of public

discourse; it enlightens, entertains, and provides a platform for opinions that otherwise might be shunned or ignored. In short, it is an indispensable component to the functioning of our representative democracy.

While news may be ephemeral, news reporting specifically the daily product of information, analysis and commentary

generated by the coverage of current events

is not.

Turner

Broadcasting recognizes the importance of these chronicles to

educators, historians, researchers, opinion makers and the

general public, and promotes their preservation and availability through a variety of means. For this reason, within the umbrella

Turner

of Turner Broadcasting System, two affiliates Educational Services, Inc., and CNN Library Tape Sales

distribute tapes of certain CNN programming to schools, public

libraries, and the general public.

In addition, CNN has entered

into a licensing agreement, for the distribution of CNN programs to the public, with Radio & TV Reports, a video monitoring service that recognizes both the benefit of public access and the

need to remit a royalty to the network whose works it captures

and reproduces for profit.

CNN has also licensed the production

and distribution of transcripts of its programs over computer

networks.

We recognize this subcommittee's interest in exploring ways in which copyright laws can promote public access to information

and facilitate rapidly developing communications technologies.

Broadcast monitoring services, including that of CNN and of its

licensees, are but one means of fulfilling this valuable public

service.

At the same time, however, public access to news

broadcasting need not be secured at the expense of copyright

ownership.

Neither broadcast monitoring services, nor the public interest in public access to video monitored news, should trump the copyright claims of those who finance, produce, create and edit broadcast news. Copyright protection, not copyright violation, serves the public interest. Copyright protection is

intended to encourage creation of intellectual property by

allowing the creator to retain the maximum ability to profit from his or her work. The control of a work's ancillary uses is an important part of deriving full value. For this reason, we are

troubled by the rhetoric of those video monitors who refuse to

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