On 14 November 2013, Judge Denny Chin of the United States District Court for the Southern District of New York found that Google’s “Library Project”, under which it has now scanned tens of millions of books (many of them under copyright) without permission from the rights holders, and made them available in “snippet form”, constituted a “fair use” of the materials, providing Google with a complete defence to the allegation of copyright infringement.

From an Australian copyright law perspective this does seem a surprising result so let’s look at Judge Chin’s reasons for concluding that Google’s conduct falls within the statutory exception in the United States.

A copy of Judge Chin’s decision is available online here. We have previously written about developments in this case here and here.

Fair Use in the United States

The US Copyright Act provides four non-exhaustive factors to be considered in determining whether a use is “fair”, namely:

the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purpose; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

While Judge Chin found that the third factor weighed slightly against a finding of fair use, because Google scans the full text of the books and copies the verbatim expression from them, he found that the other factors favoured a finding of fair use in that:

Google’s use of the books is highly transformative, involving functions which are not otherwise possible from the books themselves, as: it enables one to conduct full-text searches of the books included in the database, for any word or phrase. Readers, scholars and researchers can use this function to identify books of interest in the first place; and it allows researchers to do “text mining”. They can analyse enormous quantities of data to consider how the use of language has changed over time. While Google is a for-profit entity, it does not: sell its scans of the books; charge people to use the search engine; or put ads on its Google Books search results,

therefore, any commercial benefits Google gets from its Library Project come only from people being drawn to its websites generally, a secondary and indirect commercial benefit.

The books Google makes available to the public in snippet form are already published works (the scope for fair use is a lot narrower with respect to unpublished works); and The Library Project actually enhances book sales, benefitting copyright holders.

On this last point, the Authors Guild had argued that Google Books would effectively replace the market for the books – that people would utilise the search engine instead of buying the books themselves.  However, Judge Chin reached precisely the opposite conclusion, as demonstrated below.

This is a typical example of a book in “snippet view”. A snippet is one eighth of a page. 

Jeanne Gross’ “The development of the fair use in copyright law” was one of many search results that appeared when  the search query “fair use” was entered into Google Books. As you can see, the term “fair use” appears 84 times in the book. Each of the three snippets is only four lines long, and they’re taken from pages 6, 7 and 134 of the book.

Obviously it’s quite impossible to read the entire book from this search alone. But, an important question for Judge Chin was whether a user could, through multiple searches, effectively obtain a copy of the entire book. The answer is definitely no, for a number of reasons:

First, Google Books doesn’t return different snippets for the same search query. If you were to click “back” from this page, and again use the search query “fair use”, you would come up with exactly the same three snippets. Second, one snippet from each page is “blacklisted”, which means users can never view it. Third, one in every ten pages from the books are also blacklisted, such that they can never be viewed.

The result of these built-in protections by Google is that it would take the most dedicated searcher an exceedingly long time to piece the book together. To do this they would need to already have a full copy of the book, and even then they could only get their hands on about 80% of the content.

In light of this, and in light of the facts that:

books are more likely to be noticed in the first place if they pop up in peoples’ Google searches; and on the relevant search pages, Google provides links to websites from which the books can be purchased,

Judge Chin held that the Library project actually enhances book sales, benefiting copyright holders.

What about in Australia?

Unlike the United States, Australia doesn’t currently have a broad defence of “fair use” to copyright infringement. Rather, we have the defence of “fair dealing”, which exists specifically for the purposes of research or study, criticism or review, parody or satire and reporting of news.  Google’s Library Project is very unlikely to fall within Australia’s current fair dealing exceptions.

However, on 25 November 2013, the Australian Law Reform Commission submitted its much anticipated final report – Copyright and the Digital Economy – to the Attorney General. Although the report has yet to be tabled in Parliament, it does contain a recommendation that Australia adopts a flexible fair use exception as a defence to copyright infringement. If the report does not differ substantially from the ALRC’s previously released Discussion Paper (read it here), the drafting of the exception would be very similar to that of the US. This means that, if the recommendations are implemented by Parliament, we could see Google (or others) undertaking similar digitisation projects in Australia. And, if Australian courts follow the approach of Judge Chin, this would be acceptable under our copyright law.