The latest chapter of the Google Books saga has seen the writer’s organisation, the Authors Guild, fail in its appeal to overturn the 2013 judgment (reported on this blog here) which found in favour of Google Books and allowed the scanning and uploading of millions of books to an online library. The appeal confirmed that such activity by Google did not constitute copyright infringement despite the absence of permission from authors to have their works digitised.

Under United States copyright law, the doctrine of fair use permits limited use of copyright protected works without the authorisation of copyright owners.  The purpose and character of the use (including whether such use is of commercial nature or for non-profit, educational purposes), the nature of the copyright work, the amount and substantiality of the portion used in relation to the copyrighted work and the effect of the use upon the potential market/value of the copyrighted work are all necessary factors to consider when determining whether the use of a copyrighted work for the purpose of research, criticism, comment etc. is fair use.

Second Circuit judge Pierre Leval of the US Court of Appeals deemed that Google’s creation of its digital library was ‘fair use’ of the published material as the ‘creation of a search functionality and display of snippets from those works are non-infringing fair uses’.  He went on to state that  ‘the purpose of the copying is highly transformative, the public display of text is limited and the revelations do not provide a significant market substitute for the protected aspects of the originals’. In addition Pierre Leval stated that “Google’s commercial nature and profit motivation do not justify denial of fair use.”

Google has hailed the unanimous decision made by the three-judge panel as supporting its justification for its Google Books project, with a spokesperson claiming that it provides people with a ‘useful and easy way to find books they want to read and buy whilst at the same time benefiting copyright holders’.

Executive Director of the Authors Guild, Mary Rasenberger, has expressed her disappointment at failure of the Court to ‘reverse the District Court’s flawed interpretation of the fair use doctrine’ which allegedly sees a ‘reduction of fair use to a one factor test – whether the use is, in the Court’s eye, ‘transformative’’. It is possible that Authors Guild will ask the Supreme Court to consider the case and clarify the fair use doctrine as a result.