– By Apoorva Mishra
In 2004, Google announced two programs: “Partner Program,” involved the “hosting” and display of material provided by book publishers or other rights holders and second “Library Project,” involved the digital scanning of books in the collections of the number of university libraries. The Partner Program and the Library Project together comprise the Google Books program (“Google Books”) where all types of books are encompassed. Google creates more than one copy of each book it scans from the library collections, and it maintains digital copies of each book. Google did not seek or obtain permission from the copyright holders to digitally copy or display verbatim expressions from in-copyright books. Google has not compensated copyright holders for its copying of or displaying of verbatim expression from in-copyright books or its making available to libraries for downloading of digital copies of in-copyright books scanned from their collections. Google also provides snippet view for the books for the users to read. Plaintiffs commenced this action on September 20, 2005, alleging, inter alia, that Google committed copyright infringement by scanning copyrighted books and making them available for search without permission of the copyright holders.
ISSUE
Whether Google’s use of copyrighted work is “fair use” under the copyrighted laws?
Analysis
Doctrine of Fair Use
The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. Fair use allows people other than the copyright owner to copy part or, in some circumstances, all of a copyrighted work, even where the copyright holder has not given permission or objects.
Copyright law does not give copyright holders complete control of their works. Copyrighted works move into “the public domain” and are available for unlimited use by the public when the copyright term expires. But even before works enter the public domain, the public is free to make “fair uses” of copyrighted works. The Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law.”[1]
Fair Use – Transformative in nature
Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original and are not simply a reproduction. There are four factors determining fair use:
- Purpose and character of use.
- Nature of copyrighted work
- Amount or Substantiality of Portion Used
- The Effect of the Use in the Potential Market or for the Value of Work
The key consideration is: Whether the use of copyrighted work is transformative or not?
- Google’s use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.
- Google Books has become an important tool for libraries and librarians and cite-checkers as it helps to identify and find books. The use of book text to facilitate search through the display of snippets is transformative.
- Google uses snippets of text to act as pointers directing users to a broad selection of books.
- Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text the frequency of words and trends in their usage provide substantive information.
- Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it adds value to the original and allows for the creation of new information, new aesthetics, new insights and understandings.
- Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan.
- Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book.
- Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.
Google Provides various significant public benefits:
- It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.
- It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books.
- It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books.
- It generates new audiences and creates new sources of income for authors and publishers.
- Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences.
- Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.
CONCLUSION
Google is entitled to summary judgment with respect to plaintiffs’ claims based on the copies of scanned books made available to libraries. Even assuming plaintiffs have demonstrated a prima facie case of copyright infringement, Google’s actions constitute fair use here as well. Google provides the libraries with the technological means to make digital copies of books that they already own. The purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law. The libraries then use these digital copies in transformative ways. They create their own full-text searchable indices of books, maintain copies for purposes of preservation, and make copies available to print-disabled individuals, expanding access for them in unprecedented ways. Google’s actions in providing the libraries with the ability to engage in activities that advance the arts and sciences constitute fair use.
[1] Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 127 L. Ed. 2d 500 [1994]
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