Copyright

Google Book Search and Indian Copyright Law: An Inflammatory Idea?


Those of you tracking the latest copyright news might have noted that the Indian Reprographic Rights Organisation (IRRO), a book publishers association, has strongly protested the ongoing Google Book Search (GBS) settlement terms in the US. Indeed, we’re not far from the day when the IRRO will take on Google before Indian courts. And when they do so, they are likely to win, as the Indian “fair use” is worryingly narrower than the US version.
I highlight this controversy in a recent editorial in the Indian Express (IE). In particular, I stress the importance of crafting creative solutions to foster Google’s far sighted project and the promise of a knowledge revolution, albeit with appropriate controls to check any potential abuses by Google. Below is the text of the IE editorial:

“The creation of gigantic knowledge repositories has proved challenging since time immemorial. The fabled library of Alexandria sought to capture the entirety of documented human knowledge, but was unfortunately set ablaze in the first century BC. Closer home, Nalanda’s ancient library met the same fate with “smoke from the burning manuscripts hanging for days like a dark pall over the low hills.”

The latest entrant in this game is quite different, a private corporation, and one that does not fear physical fires. For Google’s information is stored in a medium that fires cannot singe. However, what the search company has come to fear are metaphysical fires stoked by copyright laws.

The Google Book Search (GBS) project seeks to digitise all books that are currently available in the world. Unfortunately, in 2005, Google was sued by a bunch of angry publishers. A settlement is being brokered by a US court — albeit a highly controversial one, owing to a rule that authors have to expressly “opt” out, if they do not wish their books to be part of Google’s mammoth online library.

Since such a settlement is also likely to bind Indian authors qua their copyrights in the US, UK, Canada and Australia, the Indian Reprographic Rights Organisation (IRRO), which represents Indian publishers, recently filed their objections to the settlement terms.

IRRO is also expected to sue Google in India, and if it does so, it is likely to win.

It must be stated at the outset that Google faces no liability for books whose copyrights have expired. However, for copyrighted books, Google is forced to contend with legal issues over three distinct kinds of works: copyright works that are in print, those that are out of print, and those whose authors cannot be identified (popularly referred to as orphan works). Thus far, Google has been scanning such books, converting them to text and indexing them so that contextual information from the book is displayed in response to search queries.

Were one to look for an equivalent in the physical world, one might think of a giant library or bookstore where one could not only browse books but also ask the librarian or store manager a specific query and be referred to the book in reply. In the physical world, the activity would easily qualify as non-infringing, particularly so in India, where libraries do not need to pay any fees to copyright owners, once they have legitimately purchased copies of the books.

However, in the online world, all of this changes owing to the simple act of “reproduction” that occurs whilst scanning the book. Copyright laws prohibit the reproduction of any work without the consent of the copyright owner, barring limited circumstances. One such circumstance is what is commonly referred to as “fair use”.

Under this doctrine, Google could claim that since it provides mere “query”-related snippets from the book and not its entire content, its activities are unlikely to harm the sales of the books. If at all anything, it will lead to increased sales.

Paradoxically enough, India, which often nears the top of the US’ notorious “special 301” list for failing to maintain robust intellectual property protection norms, encapsulates a stricter version of the fair use doctrine and promotes greater rent extraction by copyright owners. The Indian section requires that apart from being “fair”, the activity has to be performed by the user only for his/her private or personal use, including research. It would seem that Google cannot make any personal claims to the noble endeavour of “research”; it merely facilitates this activity by users.

The reason Google is pursuing a settlement despite having a fair shot at the “fair use” exception in the US is that it desires much more access to the copyrighted works than currently permissible under law. In particular, it wishes to provide libraries with full-text access to all of its digitised books — on commercial terms, with the authors sharing in the proceeds received.

As with any other project, the GBS has its fair share of aye-sayers and nay-sayers. Many are concerned, and rightly so, about the concentration of all this knowledge and power in one private corporation. Others hail this as nothing short of a knowledge revolution. Indeed, with all of the worlds’ wisdom a mere mouse-click away, dusty libraries and sweaty afternoons would soon become a thing of the past.

Other benefits include the fact that authors are more easily located and are likely to benefit from greater sales of their books. Perhaps the greatest beneficiaries are the visually impaired, who will gain access to many more digital (audio-enabled) titles, enabling them to participate more effectively in our knowledge economy.

Therefore, courts must find creative ways to ensure that copyright flames sparked by Google’s revolutionary project do not singe, but are stoked in a balanced manner.”

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Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

11 comments.

  1. AvatarAnonymous

    Another twist to the GBS Project has been the Right to Privacy concerns raised by few individuals in US. They claim that since Google through Google Books will be able to monitor as to which book a user is reading, the exact pages and the time spent on those pages. Google can consolidate this data and always sell it in the market.

    Reply
  2. AvatarYogi

    Very lucid piece, Shamnad! I wanted to add some more thoughts to it. If we look into the digital arena, the very idea of having “reproduction” as a right is seriously harming. There are many who have argued so on different occassions. Then, infringement should essentially hinge on “communication” and not “reproduction”. Again, if economic harm factor should determine the test of fair use, it can succuessfully be argued that communicating snippets wouldn’t amount to causing economic harm. The analogy to this would be a bookseller displaying a legitimate copy of any literary work. Ofcourse, this is only appreciable if we were to excuse infringements based on the central right of reproduction.
    On the issue of concentration and the potential of abuse by Google- unilateral or otherwise, there are remedies available within the competition law framework. We have come far from the idea that small is always beautiful and big is essentially ugly! I fully agree with you that it all depends on how the Indian courts wish to expand notions of fair use to accommodate advantages presented by the digital world.

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  3. AvatarShamnad Basheer

    Thanks so much Yogi,

    And great to see you back on the blog. I hope you will now continue to engage with the blog on a more frequent basis, as your views have always helped better our discussions. You’re right on the antitrust aspect–and the settlement has been objected to by the DOJ in the US on several counts. One wonders what the Indian authority is likely to do, should a competition concern be presented to it. I know you track this area closely. Has the competition authority in India begun functioning in earnest yet?

    Reply
  4. AvatarAnonymous

    i think watever google is doing, will benefit greatly the common folks who cannot afford to buy so many books or visit libraries all the time. at the click of a mouse the genera public can browse online n then, if the snnipet is convincing enough, they can shell out money to buy it.it is a great boost to the knowledge economy n its time we salute a company which while doing business is also doing good to the million of book readers all over the world.

    Reply
  5. Avatarvidya

    Samnad I do not wish to comment on the activities of Google,but was surprised at your emphatic statement ….. Indeed, we’re not far from the day when the IRRO will take on Google before Indian courts. And when they do so, they are likely to win,…..may I remind you of the earlier spicy blog in the case of M/s Phonographic Performance Ltd. v. M/s Hotel Gold Regency & Othrs (MANU/DE/0942/2008) wherein the Delhi High Court held that…. from a bare reading of Section 34 it was obvious that the legislature had vested the copyright societies with only rights of administration that included the right to issue licenses and collect royalties and distribute the earnings amongst owners. The Court further observed that in case there were disputes regarding the violation of these licenses issued by the society then the copyright society would have the right to sue in its name since it was a contractual dispute and not a case of copyright infringement.
    In this backdrop can the IRRO succeed?

    Reply
  6. AvatarShamnad Basheer

    Vidya,

    You may be right that IRRO may not have standing to sue on its own. But that’s not really material to the central argument of the piece that Indian law has a narrower fair use than the US. Even if IRRO cannot sue, Indian authors certainly can!

    And if they do so, they are likely to win.

    Reply
  7. Avatarvidya

    There is yet another factor that I wish to bring to your notice-forget for a moment use and misuse of fair use-the benefit of piracy is that it provides free publicity to the owners of copyright-It is reported that Ink -an Indie film received unprecedented world wide attention when the pirated movie was downloaded 40,000 timesIn fact the owners were happy at its popularity across the globe!!!! -Prof.Vidya

    Reply
  8. Avatarvidya

    There is yet another factor that I wish to bring to your notice-forget for a moment use and misuse of fair use-the benefit of piracy is that it provides free publicity to the owners of copyright-It is reported that Ink -an Indie film received unprecedented world wide attention when the pirated movie was downloaded 40,000 timesIn fact the owners were happy at its popularity across the globe!!!! -Prof.Vidya

    Reply
  9. Avatarsnickersnee

    The objection says that the IRRO makes its presentation without submitting to the jurisdiction of the US Court. I’m confused as to what exactly this means. Could anyone provide a clarification?
    – Amoolya

    Reply
  10. Avatarkatrina

    Indian Authors
    A group of some authors and publishers and two firms in India have filed a proper protestation to the Google Books Settlement.
    The Indian Reprographic Rights Organization and the Federation of Indian Publishers and these 15 individuals join a panoply of worldwide entities who contain objected to Google’s ruthless and notorious plan to scan as many books as possible \all the way through the world. Though the search and Web app giant’s scheme would create a vast online library, it may also infringe on the rights of content creators and has created a lengthy worldwide official battle.

    Reply

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