Copyright

Google Books Library Project is Permissible Fair Use


On 14th November 2013, Judge Chin of the United States District Court of New York, in a much-awaited ruling, decided that  the Google Books Library Project was permissible under the fair use defense of copyright. google book week

The facts of the case were that the Authors Guild were suing the Library project of Google Books for copyright infringement. (Earlier the Association of American Publishers were also plaintiffs. However, they entered into a settlement with Google) Under the Google Books Library project, Google has scanned more than twenty million library books in their entirety from libraries such as the  New York Public Library, the Library of Congress, and a number of other university libraries. The library books were not restricted to works in the public domain and included copyrighted works as well.  The digital copies of the contributed library books were made available to the participating libraries which contributed them and not to other libraries. Google created an electronic database of all the books which users can search through using. However, while the users could search for a term in the full text of a book, they would only be able to access snippets of these books which have been classified as snippet-view. Additionally, Google Books also promotes data mining or text mining. This is the process by which researchers can examine the frequencies of words and phrases, syntactic patterns and thematic markers across time to analyse the various changes that have taken place. It is significant to note that Google did not obtain or seek permission from the copyright holders prior to scanning the full text of their books and making snippets of them available through its search engine. The plaintiffs contended that this was a violation of their copyright.

The Court ruled that there was a prima facie case of copyright infringement. It then proceeded to Google’s submission that its activities would fall within the fair use exception. Under US law, four conditions need to be analysed for determining whether the use of a copyright protected work was fair use or not: first, the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, secondly, the nature of the copyrighted work, thirdly, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and fourthly, the effect of the use upon the potential market for or value of the copyrighted work.

On the first requirement of the purpose and character of the use, the Court after referring to case law noted that “a key consideration is whether,  the use of the copyrighted work is”transformative,” that is, whether the new work merely “supersedes” or “supplants” the original creation, or whether it instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The Court held that Google’s use of the copyrighted works was highly transformative. The Court stated that Google’s “use of book text to facilitate search through the display of snippets” was transformative. Google’s conversion of book text into data for research as in the cases of data mining and text mining was also held to be transformative. Moreover, the Library Project was held to be not superseding or supplanting the original works as the full text of the books could not be read through it. And although Google was deriving commercial benefit indirectly through the Library project, the Court noted that it served several important educational purposes as well. Thus, the Court held that the first requirement was satisfied.

On the second prong of nature of the copyrighted books, the Court noted that the vast majority of the books were non-fiction published books which were available to the public. These factors had been held in previous cases as well to favour a finding of fair use. Thus, the second requirement was satisfied.

The third condition dealt with the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Although Google limited the amount of text it displayed in response to a search query, the fact that it scanned the full text and reproduced verbatim expressions was held to weigh slightly against a ruling of fair use.

The final requirement to be analysed is the effect of the use upon the potential market for or value of the copyrighted work. The Court noted that Google Books aids in making authors’ works noticeable for potential authors, thereby increasing its audiences. Moreover, Google provides links to online booksellers such as Amazon.com, thereby making it more convenient for readers to order a book. Therefore, the Court held that Google Books was in fact aiding book sales and therefore ruled that the fourth requirement was satisfied.

Thus, considering these four factors, the Court ruled that the Google Books Library Project was permissible under fair use.

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L. Gopika Murthy

Gopika is a fourth year student at National Law School of India University, Bangalore. She was formerly the Chief Editor of the Indian Journal of Law and Technology. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

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