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What is the HathiTrust Digital Library?
The HathiTrust Digital Library is a service provided by the University of Michigan in partnership with other major universities, research institutions and libraries. Currently the HathiTrust Digital Library contains over 10 million volumes. Judge Baer in his judgment described the process by which the books are digitised:
[the HathiTrust partners] have entered into agreements with Google, Inc ("Google"), that allow Google to create digital copies of works in the Universities' libraries in exchange for which Google provides copies to the [Universities].... After Digitization, Google retains a copy of the digital book that is available through Google Books, an online system through which Google users can search the content and view "snippets" of the books. Google also provides a digital copy of each scanned work to the universities, which includes scanned image files of the pages and a text file from the printed work.... After Google provides the Universities with digital copies of their works, the Universities then "contribute" these digital copies to the HathiTrust Digital Library.The case
The case involved a group of authors who brought proceedings against HathiTrust and those behind the service, claiming copyright infringement for alleged unauthorised reproduction and distribution of books held by the university partners. HathiTrust brought a motion for summary judgment on the basis that the conduct fell squarely within the fair use exception.
Judge Baer accepted HathiTrust's arguments, holding that a fair use defence was available based on the proposed purpose and character of the use of the reproductions. He identified the purposes of the reproductions as being:
(a) the protection of fragile books;
(b) enabling print-disable individuals equal access to the works; and
(c) enhanced search capabilities.
His Honour also held that the character of the reproductions was transformative, and that where a use is transformative, fair use is likely to be made out. Here the use was transformative because the copies served an entirely different purpose to the original works. The new purpose was the enhanced search capabilities – rather than actual access to copyright material – and this was already enabling new and innovative techniques of academic inquiry.
Judge Baer's interpretation of the fair use doctrine to allow reproduction for transformative uses is an important development for organisations in the technology space. At least in the US, this decision may pave the way for organisations to rely on the fair use exception to enable copying of copyright works in circumstances where it is necessary in order to enable indexing, cataloguing, backing-up, searching and the maintenance of digital collections.
The position in Australia
There is no broad-based fair use exception to copyright infringement under Australian law. However, there are some other provisions within the Copyright Act 1968 (Cth) that may offer a defence to copyright infringement where reproductions are being made for similar purposes to those in the HathiTrust case.
Protecting fragile books
In relation to the protection of fragile books, section 51A of the Copyright Act provides an exception to infringement for libraries and archives. The exception applies where the making of a reproduction of a work is done for the purpose of preservation, replacing a damaged or deteriorated work, or replacing a lost or stolen work.
Enabling print-disabled individuals to have equal access
Section 135ZN of the Copyright Act provides an exception for institutions assisting persons with a print disability. Where such an institution makes a reproduction of the whole or part of an edition of a published work for use in the provision of assistance to persons with a print disability, they will not infringe copyright. However, this provision is unlikely to be broad enough to capture the type of digital reproductions that were created in the HathiTrust case.
Enhanced electronic searching capabilities
The Copyright Act does not have a specific provision that exempts from copyright infringement reproductions made for the purpose of enhanced electronic searching. There are provisions in Division 5 of Part III of the Copyright Act that allow libraries and archives to make digital reproductions of works in their collections in certain circumstances. However these provisions are tightly constrained and would not extend to allowing such institutions to digitise their entire collections in order to provide enhanced public access.
Another option would be to argue that the use fell within one of the four fair dealing defences under the Copyright Act. Unlike in the United States, where a broad-based fair use exemption to copyright infringement exists, the Australian Copyright Act codifies four specific fair dealing defences. They are where the infringing act has been carried out for the purpose of criticism or review; parody or satire; reporting news; or research or study.
The most relevant defence for present purposes would be fair dealing for the purpose of research or study, which is found in section 40 (in respect of works and adaptations) and section 103C (in respect of audio-visual items) of the Copyright Act. This defence requires the court to first ask whether the purpose of the infringing act was research or study, and secondly whether the infringing act was fair in all the circumstances.
Courts give the terms 'research' and 'study' their ordinary dictionary definitions when considering whether the infringing act has been done for the purpose of research or study. When determining whether an infringing act is fair in the circumstances, the factors that Australian courts may have regard to are similar to those considered by US courts in relation to fair use, only they are more limited to the particular type of dealing. The factors to which Australian courts may have regard when considering whether the reproduction of a work or adaptation is a fair dealing for the purpose of research or study are set out in the Copyright Act, and include:
(a) the purpose and character of the dealing;
(b) the nature of the work or adaptation;
(c) the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;
(d) the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
(e) in a case where part only of the work or adaptation is reproduced – the amount and substantiality of the part copies in relation to the whole work or adaption.
While these factors give some guidance on how the courts will approach the question of fairness, the defence remains uncertain in its application. In the end, whether the fair dealing for research or study defence applies comes down to impression, and must be determined on a case by case basis. One significant problem that HathiTrust would have encountered had the case been brought in Australia is that the relevant purpose that the court considers is that of the person doing the infringing act, not an end user who might access a reproduction that has been made by the alleged infringer.[1] Consequently HathiTrust would not have been able to invoke the defence just by showing that its subscribers used the Digital Library for the purpose of research or study.
The final possible defence is the 'special cases' exemption in section 200AB of the Copyright Act. This section provides educational institutions, libraries and archives, and those with print disabilities with a defence to copyright infringement where the use in question does not prejudice the copyright owner's legitimate interests and ability to exploit his or her copyright material. The section will also not be available if the use is for a purpose of gaining a commercial advantage or making a profit. Section 200AB was only introduced in 2006 in accordance with Australia's obligations under the Berne Convention and the TRIPS (Trade-Related Aspects Of Intellectual Property Rights) Agreement. It is yet to be tested in this country and has also been criticised for its uncertainty.
Transformative use
The Copyright Act does not currently provide an exception to copyright infringement for the transformative use of copyright material, unless that use falls within one of the fair dealing defences or other exceptions under the Copyright Act. This means that the current position under Australian law does not adequately distinguish between the copying of content for the purposes of distribution, as opposed to copying for the purposes of facilitating digital content management systems. Unfortunately this is an area in which the legislation has not kept pace with advancing technology.
The ALRC inquiry
The Australian Law Reform Commission (ALRC) is currently looking at the issue of exceptions to copyright infringement as part of an inquiry into Copyright and the Digital Economy. More specifically, the ALRC has been asked to consider whether the current exceptions to infringement in the Copyright Act are sufficient in our increasingly digital environment. In the Issues Paper released by the ALRC earlier this year, transformative use and the digitalisation of works by libraries and archives have been identified as areas of particular interest to the inquiry. The ALRC is also considering whether a broad-based fair use exception, like that in the United States, should be introduced into the Copyright Act.
The ALRC is due to report back to the Attorney-General on 30 November 2013.
[1] De Garis v Neville Jeffress Pidler Pty Ltd [1990] FCA 218 at [28] - [34].
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