1 SIMPSONS SOLICITORS Get it on Google: Google Book Search A review of the US actions against...

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Get it on Google: Google Book Search

A review of the US actions against Google Inc. and the implications in

Australia

Kasey [email protected]


Google Book Search

Is this the end of libraries as we know them today?

Google Inc.• Market Capitalization: $85 billion• More than 200 million search queries per day

• Revenue in 2004: over $3 billion


Google Book Search

Google Print Program:

1. Partner Program and Library Project

2. Actions commenced against Google in the US

– Is Google’s use a ‘fair use’?

3. Australian position


PRINT PROGRAM

PUBLISHERS LIBRARIES

PARTNER LIBRARY PROGRAM PROJECT

GOOGLE BOOK SEARCHDATABASE


Google Print - Partner ProgramWhat does it involve?

• Publisher:– Identifies works– Enters into agreement with Google– Consents to sample pages being viewed by users

• Google:– Scans and indexes the full text of the works in the

Book Search database


Google Partner ProgramPiracy concerns?

Risk of Online Piracy:• Is Google capable of keeping works safe from

online piracy?• No guarantees in agreement with

publishers…• Piracy surfacing on blogs• Balancing act for publishers


Google Library Project What is the Library Project?

• Material sourced from:– Libraries of Harvard, Stanford, Oxford and

Michigan Universities– New York Public library

• Agreements vary - some full access, others limited

• ‘Snippet’ view / Sample pages / Full text


Google Library Project Public Benefit

• Simple, comprehensive and user friendly search engine

• Searches leading research libraries

“Man on the moon initiative”

“We see a world where all books are online and searchable”


Google Library Project

Concerns:• Association of American Publishers

immediately raised its concerns about copyright infringement

Google’s fix:• opt-out mechanism for publishers


Google Library Project Actions Against Google

• Actions commenced by:– Authors Guild + individual authors– 5 major publishing houses on behalf of the AAP

• Claiming that Google’s conduct constitutes an infringement of copyright under the United States Copyright Act 1976


Sec. 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under

this title has the exclusive rights to do and to authorize any of the

following:

1. To reproduce the copyrighted work in copies or phonorecords;

2. To prepare derivative works based upon the copyrighted work;

3. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

5. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

6. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.



Potentially infringing conduct• Scanning the full text of a book into

Book Search database

• Search results published on a user’s screen as a result of a search query

Google’s justification? ‘Fair Use’


Google Library Project Is it a ‘fair use’?

Sec. 107. Limitations on exclusive rights: Fair use:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”


Google Library Project Is it a ‘fair use’?

Section 107 sets out a four factor test:1. The purpose and character of the use, including

whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. The effect of the use upon the potential market for or value of the copyrighted work.


Kelly v Arriba Soft Corporation

• Search engine operator• Copied images from websites without

consent• Stored thumbnail copies of the images

in its database• Users clicked on thumbnail image and

were provided with a link to original website from which image had been sourced


Kelly v Arriba Soft CorporationFactor 1: ‘Purpose and character of the use, including whether

the use is of a commercial nature’

• Court acknowledged Arriba’s commercial purpose

• Arriba’s use described as ‘More incidental and less exploitative in nature than the more traditional types of commercial use’

• Compared Arriba’s use to Napster’s commercial use




Did Arriba’s use supersede the object of the original images or instead add a different purpose or character?• Kelly’s works:

– Artistic original works– Purpose: to inform and engage the viewer in an aesthetic

manner

• Arriba’s works: – Purpose: Providing a ‘tool to help index and improve

access to images on the internet’.




Arriba’s use “promotes the goals of the Copyright Act and the fair use exception” because the thumbnail images “do not supplant the need for the originals” and, they “benefit the public by enhancing information gathering techniques on the internet”


Google Library ProjectFactor 1: ‘Purpose and character of the use, including whether


Similarities:

• Commercial component to the Library program

• Only ‘snippets’ available

• Works not being used to promote Google

• Not attempting to sell the works

Differences:

• Works are being digitised for the first time…


Kelly v Arriba Soft CorporationFactor 2: ‘Nature of the copyright work’

In Arriba’s case:

• Artistic works - ‘closer to the core’ of intended copyright protection

On the other hand…..

• Published works - more likely to qualify as fair use


Google Library Project Factor 2: ‘Nature of the copyright work’

The Library project involves:

• Published works

• Vast majority will be non-fiction works

Google likely to succeed on this point


Kelly v Arriba Soft CorporationFactor 3: ‘Amount and substantiality of the portion used in relation

to the copyright work as a whole’

• Confirmed that copying entire work weighs against a finding of fair use. However….

– must be considered in light of the purpose and character of the use

• If a secondary user only copies “as much as is necessary for their intended use”, this factor will not weigh against them


Google Library Project Factor 3: ‘Amount and substantiality of the portion used in relation

to the copyright work as a whole’

Google will argue:

Copying of an entire book is a necessary step in providing a comprehensive book search engine


Kelly v Arriba Soft CorporationFactor 4: ‘The effect of the use upon the potential market for or

value of the copyrighted work’

• Search engine ‘would guide users to the original website’

• Potentially enhance the value of Kelly’s works• Thumbnail images would not impact on

Kelly’s ability to sell or license the works


Google Library ProjectFactor 4: ‘The effect of the use upon the potential market for or

value of the copyrighted work’

• Increased exposure - may increase demand for some books

However:• Potential impact on the market for fact-based

books?– Users can retrieve information that they need

without purchasing the book


Is Google likely to succeed?

In light of Arriba’s case:

Google has a good chance of successfully defending its actions as a ‘fair use’ under the United States Copyright Act.


Library Project Position in Australia

• Copyright laws are territorial

• What potential acts of infringement are taking place in Australia?

– Scanning of full text taking place in the US– Reproduction of search results on users

computer in Australia?



Search results: Will they constitute a substantial reproduction of the work?

•Many cases - search results will not be a substantial reproduction•Key phrases from poems or short stories

– Potential substantial reproduction of the work



Could Google defend its actions as a ‘fair dealing’ under the Australian Copyright Act?

•Fair dealing defence in Australia is a set of specific exceptions•US defence of ‘fair use’ much broader than Australian ‘fair dealing’ defence



Section 40 (1): Fair dealing for purpose of research or study:

A fair dealing with a literary work, for the purpose of research or study does not constitute an infringement of the copyright in the work.



Section 40(2) Factors to consider:

• the purpose and character of the dealing;• the nature of the work or adaptation; • the possibility of obtaining the work or adaptation within a

reasonable time at an ordinary commercial price; • the effect of the dealing upon the potential market for, or value

of, the work or adaptation; and• where part only of the work is reproduced, the amount and

substantiality of the part copied in relation to the whole work



Is Google engaging in research or study?

De Garis v Nevelle Jeffries• Purpose of the person making the

dealing that is relevant

Google would not succeed in defending its actions as a fair dealing for the purposes of research or study



In summary:• Personal view - useful research tool• Publishers should be mindful of online piracy• Google likely to succeed in defending actions

as a fair use in the US• However, in Australia, Google’s actions would

not be considered a fair dealing for the purpose of research or study

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