Google Books, fair use and fair dealing

Posted by Nick Liau and Paul Kallenbach

Since the inception of the Google Books project in 2004, Google has scanned and digitised over 30 million books.  Google Books enables users to search for text within digitised books.  Users' search results return short extracts of books together with title and other bibliographical details.  Google's search engine can thus be employed to perform complex analyses of the Google Books database, for instance, by enabling users to search for how frequently certain words or phrases are used across time.  Users are not, however, able to view or download the full content of the books contained within the Google Books database.

Many of the books scanned during the project are protected by copyright.  Google did not seek the permission of all copyright owners before scanning those copyright works and incorporating them into the Google Books database. 

In The Authors Guild & Ors v Google, a number of publishers and authors sued Google for copyright infringement, asserting that Google's scanning and digitisation of books constituted a breach of copyright.  However, on 14 November, the United States District Court dismissed this action, finding that Google had not breached copyright, on the basis that Google's use fell within the 'fair use' defence under section 107 of the US Copyright Act.

The 'fair use' defence in the US is a broad-based defence to copyright infringement.  Whether a particular use is 'fair use' is assessed on a case-by-case basis; US case law tells us that, in general terms, a finding of fair use is more likely where:

·                the use of the material was educational, as opposed to commercial;

·                the original work had already been published;

·                only a small amount of the work was reproduced; and

·                the alleged infringer's use of the work is unlikely to affect the market or value of the original work.

In the Google Books case, the US District Court held that Google's reproduction of books did not infringe copyright on the basis of 'fair use' because:

·                Google Books is not a tool which can be used to read books – instead, it 'adds value to the original' due to the new search and analytical methods it makes available;

·                the proportion of each book which could be viewed by users was limited; and

·                the service was likely to enhance the sales of books by showing users small extracts of books, encouraging them to buy the original to read the whole text.

Australia's Copyright Act 1968 (Cth) lacks any equivalent broad-based 'fair use' exception.  Rather, the Australian Copyright Act sets out a number of narrowly defined 'fair dealing' defences, which include use of a copyright work for the purpose of news reporting, criticism or review, parody and satire, and study or research.

While, on its face, the 'study or research' fair dealing exception (in section 40 of the Australian Copyright Act) might appear to cover Google's activities in this case, this exception has been interpreted narrowly by Australian courts.  That is, it is not enough that the copied materials will ultimately be used for study or research purposes.  Rather, the party who is doing the copying must be the same party doing the study or research.  Thus, while a student's use of quotes obtained from digitised content stored on an online platform may well fall within the fair dealing exception, the platform's digitisation and communication of the content itself may not meet the requirement of being for the purposes of study or research.

This is a threshold issue under Australian copyright law – it simply does not matter how fair or reasonable the dealing may be, if the dealing does not fall within one of the defined 'fair dealing' (or other) exceptions under the Copyright Act, it will constitute copyright infringement. 

As we have previously discussed on this blog, there is ongoing debate in Australia as to whether it should follow the US and adopt a broad-based fair dealing exception.  The Google Books decision neatly illustrates the practical ramifications of the divergence between US and Australian copyright law in the area of exceptions to copyright infringement. 

As has been widely reported, Australia is currently involved in negotiations with eleven other countries, including the US, over the Trans Pacific Partnership (TPP) trade agreement. The TPP includes a large number of clauses devoted to intellectual property issues.  The negotiations are being conducted behind closed doors, but a recent draft of the agreement has been leaked via WikiLeaks.  The most recent available clause dealing with limitations and exceptions to copyright infringement is not prescriptive on the issue, which suggests that a broad-based fair use exception would not be inconsistent with the TPP (or at least with the current draft of the TPP).