In what has been called “a big win for libraries and researchers”, a US District Court ruled in November 2013 that the Google Books Library Project is a fair use of copyright works. Since 2004, Google has been creating the world’s largest digital library, scanning more than 20 million books in their entirety, most of which have been non-fiction works. The Library Project allows members of the public to search through any book in Google’s collection, although Google limits the search results to snippets of the book rather than its full text.
In 2005, the Authors Guild and the Association of American Publishers sued Google for the infringement of the copyrighted books available through the Library Project. They maintain that Google has no right to copy the entire text of copyrighted books and save them to its own database. Google argued in response that the Library Project is protected by the American fair-use exception to copyright infringement, which considers a range of factors including whether the use is “transformative” (that is, whether the use adds something novel to the work, differentiating it from the original creation).
The Court’s Fair Use Analysis
In his ruling, Judge Denny Chin decided in favour of Google for a number of reasons. In particular, he held that Google’s use of the works was highly transformative by producing a searchable word index out of digitised books, and that the Library Project served an important educational purpose despite Google being a commercial entity.
Judge Chin made note of the limited amount of text displayed when a book is searched, meaning that Google’s scans could not replace the books; rather, he held, Google Books enabled works to become noticed and improved sales. He also emphasised the public benefits of the Library Project, for example increasing the accessibility of books to readers and researchers as well as helping to preserve books that would otherwise fall out of print. The Authors Guild filed a notice of appeal on 30 December 2013, with arguments to be heard before the Second Circuit Court of Appeals on a date yet to be finalised. Currently, the Second Circuit is preparing to rule on a parallel case, Authors Guild v HathiTrust, HathiTrust being a collective of Google’s library scanning partners.
How Would the Library Project Fare Under Australian Law?
Australian copyright law differs from US law when it comes to exceptions to copyright infringement. Australia has a narrower, more specific set of fair dealing exceptions, such as an exception for the specific purpose of research or study, or for criticism or review. While Australian courts have yet to deal with such a case, given the increasing move towards digitisation by both Google and other companies following Google’s example, it’s likely that Australia will have to confront this issue.
The fair dealing provisions are currently under review by the Australian Law Reform Commission with a proposal to introduce a similar US style “fair use” defence. Arts Law's submission in response has provided arguments to how such an open-ended fair use exception could potentially infringe upon artists' interests. The Final Report is due to be made public by the end of February 2014 so watch this space!
Neha Kasbekar is a volunteer at the Arts Law Centre of Australia.