On November 14, 2013, after an epic high-stakes eight-year legal battle, the U.S. District Court for the Southern District of New York dismissed the lawsuit brought by the Authors' Guild against Google, alleging that Google’s digitization of books in the “Google Books” project constitutes a copyright infringement. This is a landmark ruling. This client update will review the ruling and its hypothetical application under Israeli IP law.

Background

Since 2004 Google has scanned more than 20 million books of all types including novels, biographies, children's books, reference works, textbooks, instruction manuals, treatises, dictionaries, cookbooks, poetry books, and memoirs. In scanning books Google uses optical character recognition technology to generate machine-readable text, compiling a digital copy of each book. In simpler words: Google scans books to make their contents searchable on the Internet. While Google scans entire books, making the full content searchable, only a small portion of a work (“snippets”) can be read as the result of each search. The core of the issue lies in the fact that many of the books scanned by Google are protected by copyright and Google scanned these books without obtaining permission from copyright-holders to scan their works.

The Benefits of the Google Books Project

The main goal of Google’s project is to “make it easier for people to find relevant books – specifically, books they wouldn't find any other way such as those that are out of print…and to create a comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers discover new readers.” see: http://www.google.com/googlebooks/library

Other than the “search-ability” feature, the court noted additional benefits such as the promotion of “text-mining” research, the expansion of access to books for print-disabled individuals and remote or underserved populations, and - perhaps most importantly – the preservation of books. With respect to the last benefit the court noted that “Google Books helps to preserve books and give them new life. Older books, many of which are out-of-print books that are falling apart buried in library stacks, are being scanned and saved.”

The Ruling

The court rules that while Google had not obtained permission from copyright holders to scan their works, those concerns were outweighed by other factors, including the benefits discussed above. The court based its ruling on copyright law's “fair-use” doctrine, which allows limited copying of a work for purposes such as criticism, education, research and news reporting. The ruling was applauded by many commentators. The Authors' Guild, which represents writers, said it would appeal the decision.

Fair-Use Doctrine under Israeli IP Law

Israel's Copyright Act of 2007 (the “Act”) recognizes a fair-use defense that is similar – though not identical – to the US doctrine of fair use. Section 19 of the Act sets out similar criteria  for determining whether or not a prima facie infringement may be protected as fair use. Interestingly, one of the main differences between the fair use doctrine under US law and the Israeli law is the absence in Israeli law of the question of whether the allegedly infringing use is commercial in nature, a consideration that played a key role in the Google Books matter. In what appears to be a trend of some concern to rights holders, recent Israeli case law has raised, but not resolved, the question of whether fair use is merely a defense in the face of a claim of infringement, or whether it is in fact a right granted to the user/public.

How Would the Case Have been Ruled had it been  Heard In an Israeli Court?

We believe that an Israeli court could have certainly reached the same conclusion as the U.S. District Court for the Southern District of New York in the Google Books case, as Section 19 of the Act will lead to a similar implementation of the fair-use doctrine. However, in Israel's current socio-political climate, and bearing in mind recent Israel Supreme Court rulings, it is interesting to speculate about two different directions that such a case could have taken in Israel.

On the one hand, the undeniable benefits of the Google Books project to the reading and researching communities would appeal to the social responsibility contingent. The public benefit could be seen as outweighing any infringement of copyright, which would lead to a similar result to that reached by the US court – particularly since many of the books being copied are out of print or otherwise hard to obtain.

On the other hand, however, regardless of the good-guy image that it tries to project, Google is a huge corporation whose predominance in the marketplace, plans of expansion and almost unavoidable involvement (intrusion?) in the life of anyone with a cyber-presence create a perception that is not completely benevolent. And while the fair-use doctrine does not require philanthropy or even indifference to profit, those who view Google's goals askance may be less likely to allow it the defense (or the right) of fair use, feeling, perhaps, that a giant of Google's magnitude should pay for the privilege of copying protected works, even for a laudable purpose.

Time will tell if Google will ever approach Israeli libraries with a request to scan their books, and whether such scanning will be legally challenged in Israeli courts.