The U.S. decision involving the Google Books project has attracted a significant amount of interest. In that case the United States Court of Appeals for the 2nd Circuit confirmed that the Google Books project was a fair use rather than a copyright infringement.
The Facts
Google through its books project, without obtaining permission from the owners of copyright, has made digital copies of tens of millions of books that were submitted to it for that purpose by major libraries. Google has scanned, made machine-readable and indexed more than 20 million books which can be accessed by a publically available search function. An Internet user can use this function to search without charge to determine whether a scanned book contains a specified word or term and also to see “snippets” of text containing the searched for terms.
The search function displays a maximum of three “snippets” making reference to the search term. A “snippet” is a horizontal segment comprising ordinarily an eighth of a printed page. Google’s program was designed to not allow a searcher to increase the number of snippets revealed by repeated entries of the same search term or by entering searches from different computers.
The Decision
The court observed that the ultimate goal of copyright is to expand public knowledge and understanding, by giving creators exclusive control over the copying of their works. This in turn provides them with a financial incentive to create informative, intellectually enriching works for public consumption.
The U.S. copyright legislation contains a broad equitable doctrine known as “fair use”. This statutory provision is a recognition of a judge made rule. The section provides that:
“fair use of a copyrighted work…for purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
In the U.S. the fourth factor tends to be the single most important element of “fair use”. However, the first factor is important and it has been established that the more the alleged infringer is using the copyright material for new, transformative purposes the more it serves the goal of enriching public knowledge and the less likely that the alleged infringing work will serve as a substitute for the original work.
The court concluded that Google’s making of a complete digital copy of the works in issue for the purposes of providing the public with its search and snippet view functions was a “fair use” and did not infringe copyright in the books.
While the court did not mention it explicitly in the decision it seems that one of the primary functions of the Google project was to allow access to the books for research or educational purposes.
Canadian Position
There are significant differences between the U.S. legislation and the Canadian Copyright Act. The U.S. fair use exception is fairly wide open while the fair dealing exceptions in the Act are generally more narrowly drafted and exhaustively listed. As a result, American copyright concepts and decisions in this area are not likely applicable or helpful in Canada because of the fundamental differences.
Notwithstanding that the respective legislation may be different, in many cases its application will result in similar decisions being made. This is helpful because there is an international aspect to copyright, particularly copyright works on the Internet.
In our article of September 29th we summarized the nature of the approach that the courts and the Copyright Board take concerning fair dealing. A strong argument can be made that application of the Canadian fair dealing exception for research or education should result in a similar decision in Canada concerning the Google books project.
Comment
In the Google books case the U.S. court observed that the application of the fair use exception requires a case by case analysis that should not be simplified by bright-line rules. Each of the factors considered is part of a multifaceted assessment of the questions to be considered.
Unfortunately the road map to the application of these exceptions in both Canada and the U.S. can be convoluted and a bright-line approach in some cases would be helpful to the people who have to make decisions without the involvement of the courts.
John McKeown
Goldman Sloan Nash & Haber LLP
480 University Avenue, Suite 1600
Toronto, Ontario M5G 1V2
Direct Line: (416) 597-3371
Fax: (416) 597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.