COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED SECOND CONGRESS SECOND SESSION ON S. 1805 A BILL TO AMEND TITLE 17, UNITED STATES CODE, TO CLARIFY NEWS 71-249 JUNE 16, 1992 Serial No. J-102-68 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1993 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 ISBN 0-16-041387-7 COMMITTEE ON THE JUDICIARY JOSEPH R. BIDEN, JR., Delaware, Chairman EDWARD M. KENNEDY, Massachusetts HERBERT KOHL, Wisconsin STROM THURMOND, South Carolina ALAN K. SIMPSON, Wyoming RONALD A. KLAIN, Chief Counsel THADDEUS E. STROM, Minority Chief Counsel and Staff Director KF26 CONTENTS STATEMENTS OF COMMITTEE MEMBERS DeConcini, Hon. Dennis, a U.S. Senator from the State of Arizona CHRONOLOGICAL LIST OF WITNESSES Ralph Oman, Register of Copyrights, Library of Congress, Washington, DC, Robert J. Cohen, president, Video Monitoring Services of America, testifying on behalf of the International Association of Broadcast Monitors, New York, Ed Moser, president, NewsCount, Phoenix, AZ David Nimmer, attorney, Irell & Manella, Los Angeles, CA, testifying on behalf of Turner Broadcasting System and the National Association of S. 1805, a bill to amend title 17, United States Code, to clarify news reporting monitoring as a fair use exception to the exclusive rights of a copyright NEWS MONITORING TUESDAY, JUNE 16, 1992 U.S. SENATE, COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS, Washington, DC. The subcommittee met, pursuant to notice, at 10:11 a.m., in room 226, Dirksen Senate Office Building, Hon. Dennis DeConcini (chairman of the subcommittee) presiding. OPENING STATEMENT OF HON. DENNIS DeCONCINI, A U.S. SENATOR FROM THE STATE OF ARIZONA Senator DECONCINI. The Subcommittee on Patents, Copyrights and Trademarks will come to order. I apologize to the witnesses for the lateness. I know your time is very valuable, and we appreciate you being here. Today we'll conduct a hearing on S. 1805, a bill introduced by my friend, colleague and ranking member, Senator Hatch. S. 1805 would amend the fair-use doctrine embodied in the Copyright Act to include news monitoring in the list of illustrations of fair-use activities regarding copyrights works. Fair use is an affirmative defense to copyright infringement that was developed by the courts and later codified in section 107 of the 1976 Copyright Act. Currently section 107 contains a list of six uses that may be examined under this doctrine: criticism, comment, news reporting, teaching, scholarship, and research. Moreover, it provides fourfactor balancing test to be applied on a case-by-case basis. This test considers the purpose of the use, including whether the use is for profit; the nature of the copyright work; the amount of the work used; and the effects of the use upon the potential market for the copyright work. The bill before us today would add to the illustrations in the fair-use preamble another use; namely, news monitoring. This bill is an attempt to resolve a controversy regarding the ability of electronic news monitoring services to search, record, and package news broadcasts for commercial purposes. We live in an age where the electronic media provide nonstop access to a constant flow of information and take us around the world as quickly as it takes us down the street. In a constant sea of electronic information, it's difficult, if not impossible, to stay on top of all that the news has to offer. Therefore, I find these new monitoring services to be extremely valuable. However, I do not believe that the value of these services is the question before us today. To |