Blog Intellectual Property and Knowledge Management

GOOGLE BOOKS AND COPYRIGHT PROTECTION

January 20th, 2016 by IPKM blog

The Google Books project consists of the scanning and the processing of the work by optical character recognition (OCR).[1] This project has two main uses: display uses and non-display uses. The first one would be considered as the most traditional library use but in an online environment: the user accesses the website and reads the work. The second one is focused on the computational analysis, where users can study different texts in order to obtain information about the evolution of grammar, cultural influences, etc.[2] Display uses are freely accessible to all Google users, while non-display uses are reserved to analysts and researchers and they are ‘hidden’ from free access through Internet due to the lack of authorisation from the copyright owner. The main discussion about Google Books has being focused on the display uses[3] because anyone in the world can access these books without any restriction. These display uses involve the reproduction, in full or in part, of works, both under public domain or under copyright protection. The display could infringe the right holders’ rights such as the reproduction right, the distribution right and the right of communication to the public.

In United States

In October 2015, a federal circuit court in the US confirmed that Google Books is legal. The Court found the Google Books’ project to be fair use, and thus non-infringing.[4] Judge Leval opined that the way Google books was done is highly transformative:[5] the public display of text is limited and the revelations do not provide a significant market substitute for the protected aspects of the original work.  [6]

Fair use in the US is governed by 17 U.S. Code § 107. In determining fair use, certain elements shall be scrutinized: (i) the purpose and character of the use, (ii) the nature of the copyrighted work, (iii) the amount used and (iv) the effect of the use upon the potential market and value of the copyrighted work.[7]  The purpose of the use is the most controversial condition when establishing fair use. In relation to the commercial character of the use made by Google Books, judge J. Leval held  that the profit motivation of the project does not stand in the way of fair use. Furthermore, J. Leval determined that there is no reason to presume that a commercial use is not a fair use as this would destroy the widely accepted and logically justified area of fair use.[8] It is undeniable that Google Books is an unprecedented project and it is very beneficial to mankind. Yet, it is quite questionable that the usage of  incomplete snippets would be fair in the eyes of the authors since Google Books has allowed many readers to access books whose authors  would have been unknown to those readers. The issue of moral rights does not arise in the U.S., since moral rights are not available to authors of literary works under US law (and therefore the integrity of the creations cannot be legally discussed).

In the European Union

Copyright in the European Union, far from being a unique legal system, is  a patchwork of twenty-eight national copyright laws. National laws have been harmonised by several directives; nevertheless, this harmonisation is still an incomplete work. Google Books is a commercial entity which develops an economic activity when it displays the books online. By selling advertisement spaces, offering click-through links and studying the user to personalise the offers, Google makes an income from Google Books. Its activity does not quite come under the exceptions of  article 5 of the Infosoc Directive.[9] It probably does not come under the exceptions in national laws either.[10] So, why is Google Books available in Europe?

Google Books defends that it has to comply mainly with the law from United States as its servers are in this territory. In this legal environment, the project has been considered as fair use. The company has mainly scanned books from libraries in United States and has only focused on those European works in the public domain[11] or from which they have obtained permission from the right holders. Due to this strategy, and its negotiation power worldwide, Google Books does not infringe the European copyright law and we all, students and avid readers, can enjoy free access to the largest library in the world without infringing any copyright law. A different story would be if we analyse what Google does with those works not available to the public which are not displayed for the main public. Are the right holder’s’ rights protected?

By Maria Gomez and Garcia and Pam Bunnag

 

[1] Mauricio Borghi and Stavroula Karapapa, ‘Non-display uses of copyright works: Google Books and beyond’ Queen Mary Journal of Intellectual Property, Vol. 1 No. 1, April 2011, pp. 21-52.

[2] Jean-Baptiste Michel et al., ‘Quantitative Analysis of Culture Using Millions of Digitized Books’, [2010] Sciencexpress, <http://www.librarian.net/wp-content/uploads/science-googlelabs.pdf> accessed on 29 November 2015.

[3] The analysis of non-display uses requires a very deep analysis which cannot be carried in this blog entry, nevertheless the article of Borghi and Karapapa provides a deep approach to the topic. For this reason, we will focus on the display uses of Google Books.

Mauricio Borghi and Stavroula Karapapa, ‘Non-display uses of copyright works: Google Books and beyond’ Queen Mary Journal of Intellectual Property, Vol. 1 No. 1, April 2011, pp. 21-52.

[4] Keep calm and click on, The economist <http://www.economist.com/news/united-states/21676797-snippets-are-not-infringement-copyright-keep-calm-and-click> Accessed on 29 November 2015

[5] In 1990, J. Leval gave a comment about fair use in Harvard Law Review which provides a conceptualization of what shall be the manner of the use that makes it fair. He argued that the degree of transformation level done to the work should lead to a fair-use ruling. Fair use “must employ the quoted matter in a different manner or for a different purpose from the original”. See Pierre N. Leval, Toward a Fair Use Standard 103 Harv. L. Rev. 1105 (1990) < http://docs.law.gwu.edu/facweb/claw/levalfrustd.htm> accessed on 19th December 2015

[6] Robinson Meyer, The Atlantic <http://www.theatlantic.com/technology/archive/2015/10/fair-use-transformative-leval-google-books/411058/> accessed on 27 November 2015

[7] 17 U.S. Code § 107

[8] Author Guilds v Google Inc., 13-4829-cv (2nd Circ,2015) P. 26

[9] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

[10] In 2005, Google France was sued by the publishing Group La Martinière. This group accused Google of copyright infringement by digitizing copyright protected works and making them available to the public. Google was found guilty by the Paris Court in 2009. Nevertheless, , in 2011 both parties reached a settlement agreement.

François Herpe, ‘Some issues related to mass digitization of books by Google’ [2011] <http://www.eurojuris.net/en/node/41557> accessed on 18th December 2015

Matthew Saltmarsh, ‘Google Loses in French Copyright Case’ [2009] The New York Times, <http://www.nytimes.com/2009/12/19/technology/companies/19google.html> accessed on 18th December 2015

[11] Tom Krazit, ‘European laws present challenges for Google Books’ [2009] Tech Culture <http://www.cnet.com/news/european-laws-present-challenges-for-google-books/> accessed on 30th  November 2015.

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