One of the most ambitious library projects ever conceived, the Google Books project – a plan to scan and digitally store every single book in the world – has recently overcome one of the biggest legal hurdles in its path to creating the world's largest digital library. On 18 April 2016, the US Supreme Court denied without comment a petition from the Authors Guild to hear its appeal of a 2015 court ruling in favour of Google, putting an end to a decade long legal battle.

Background

Google has now scanned and digitised over 30 million books and counting as part of the Google Books project, but this story begins back in 2004 when Google first embarked on the project.

The project involves scanning and digitising books so that users can search for text within them. A user's results return short extracts of the book suitable to view the search words in context, together with the book's title and other bibliographic information. Importantly, the user cannot access the copyright protected work in its entirety.

Authors Guild, a body that represents writers and publishers, claimed that Google was unlawfully scanning these books in breach of copyright and commenced legal proceedings against Google in 2005. Google, in response, argued that its use fell within the 'fair use' defence under section 107 of the US Copyright Act and that, far from disadvantaging authors and publishers, the Google Books project actually boosted book sales by making the text of the books searchable, thereby encouraging users to buy the work in question.

What is 'fair use' again?

As we have previously discussed on this blog, the 'fair use' defence in the US is a broad defence to copyright infringement. Whilst a finding of 'fair use' is determined on a case-by-case basis, US case law tells us that such a finding is more likely where:

  • the use of the material is educational, as opposed to commercial;
  • the original work has already been published;
  • only a small amount of the work is reproduced; and
  • the alleged infringer's use of the work is unlikely to affect the market or value of the original work.

According to section 107 of the US Copyright Act, 'fair use' generally includes use for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

The lower court's decision

In October 2015, a US appeals court rejected the Authors Guild's arguments. It pointed out that for nearly 300 years authors have not had 'absolute control' over their works and that there are important exemptions for 'fair use', such as news reporting, historical analysis, parody and other 'transformative' purposes. The Court held that Google's unauthorised digitising of copyright protected works, the creation of a search functionality and the display of snippets of the works were non-infringing fair uses, because:

  • the purpose of the copying was highly transformative;
  • the snippets did not provide a viable substitute for the works themselves; and
  • it was immaterial to a finding of 'fair use' that Google was motivated to make a profit from the project.

The Authors Guild subsequently filed a petition to the US Supreme Court to hear an appeal.

The US Supreme Court's decision (or lack thereof)

On 18 April 2016, the US Supreme Court closed the book on the Authors Guild's final legal avenue in the US by rejecting its petition for appeal without comment. Ironically, by rejecting the petition without comment, the Court made the loudest statement possible in support of the 2015 decision and the finding that Google was engaged in 'fair use'.

So, what's the story in Australia?

The Google Books decision is based upon the US doctrine of 'fair use'. However, such a broad and flexible doctrine does not exist in Australia under the Copyright Act 1968 (Cth). Rather, the Copyright Act contains the narrower and more specific 'fair dealing' exceptions, which principally allow use of a copyright work for the purposes of news reporting, criticism or review, parody and satire and study or research.

As we have previously discussed on this blog, whilst the 'study or research' fair dealing exception (in section 40 of the Copyright Act) might, on its face, appear to cover Google's activities in this case, this exception has been interpreted narrowly by Australian courts. That is, not only must the copied materials be used for study or research purposes, but the party doing the copying must also be the party doing the study or research. For instance, while a particular student's use of quotes obtained from Google Books extracts might well fall within the 'fair dealing' exception, Google Books' digitisation and communication of the content itself is unlikely to satisfy the necessary requirement of being for the purposes of study or research.

Is this the final chapter?

Whilst for the time being this issue appears resolved in the US, the legal situation of Google Books in Australia remains uncertain. Although unlikely, it is still unclear whether Google Books would fall under one of Australia's 'fair dealing' exceptions.

Moreover, there has been growing pressure in the community to update and extend existing copyright exceptions in Australia to better deal with issues created by the digital environment. Indeed, the Australian Law Reform Commission (ALRC) in 2013 and the Australia Productivity Commission in April 2016 both proposed that Australia should follow the US and repeal the existing 'fair dealing' exception and introduce a new, broader US-style 'fair use' exception. Such a move would likely leave Google Books free to continue its library project without the risk of being sued for copyright infringement in Australia. So, at least on our fair shores, the final chapter of this story remains to be written.