The US District Court for the Southern District of New York has issued a ruling finding that Google's activities in scanning books and displaying snippets of text for its Library Project falls within the fair use defence under US Copyright Law.

For its Library Project, Google, under agreement with a number of major research libraries, has scanned the complete text of over 20 million books, the majority of which are non-fiction and out of print. These digital copies have been delivered to the participating libraries (who may only download full digital copies of their own collections and must comply with copyright laws with respect to copies they make) and used to create Google's searchable electronic database of books. The search results only allow users to view "snippets" of copyright protected works, and Google has employed security measures to prevent users from viewing a complete copy of a snippet view work.

In 2005, both the Author's Guild and Association of American Publishers ("AAP") sued Google for copyright infringement, although the AAP and Google reached a settlement last year, under the terms of which US publishers can choose whether to make available or remove their books and journals from Google's database.

Now, in a ruling dismissing the remaining action by the Author's Guild, judge Denny Chin (who has presided over the entirety of the case) has found the Library Project constitutes fair use. Judge Chin highlighted the many benefits of the Library Project, stating that it was a new and efficient way for readers and researchers to find books, makes the process of inter-library lending more efficient, greatly promotes "data mining" and "text mining" research, and expands access to books, bringing them to new audiences and thereby creating new sources of income for the copyright holders.

More specifically, in relation to the four main criteria for establishing the fair use defence, the following observations were made:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes - it was found that "Google's use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers and others find books". Moreover, it was noted that Google Books does not "supersede or supplant books because it is not a tool to be used to read books".
  2. the nature of the copyrighted work – the fact that the majority of the books scanned were works of non-fiction and were in print weighed in favour of finding fair use.
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole – on this point, Google's activities in scanning and allowing searched against the full text of books weighted slightly against a finding of fair use, although it was not determinative given Google's ultimate success in this case.
  4. the effect of the use upon the potential market for or value of the copyrighted work – Google's service could not be said to adversely affect the market for or value of the books scanned, as Google did not sell its digital scanned copies and these did not stand in place of the books. Indeed, the Library Project "enhances the sales of books to the benefit of copyright holders".

This will be a crucial decision for Google and other operators in this field with an impact far beyond the settling of this particular case, as it has now been clarified that such activities fall within the fair use defence under US law.

There is no overall fair use defence under UK copyright law. The issue of whether there should be exemptions under copyright law for activities such as text and data mining is currently a hot topic both at EU and UK level. The European Commission in December 2012 set up a working group under its Licences for Europe programme, which was intended to open discussions about how such research activities could be facilitated. Unfortunately, progress has stalled over concerns from scientists that licensing alone is not an effective means of permitting text and data mining activities, and that changes to copyright law are required. In the UK, the IPO has recently proposed a number of new statutory copyright exceptions, one of which would permit the copying of a work "as part of a technological process of analysis and synthesis of the content of the work for the sole purpose of non-commercial research" provided the copier already has lawful access to a copy. This would clearly cover text and data mining. Whilst the proposed new exception could not be overridden by contract, it would be open to parties to impose conditions of access to a licensor's computer system or to third party systems on which the work is accessed. Please click here for copies of the draft exceptions.

Please see here for the full judgment in the Google case.