In the beginning it seemed like a dream
come true: to make literature and knowledge accessible from all over the world
and at any time. Free access to culture and information, this was Google’s
promise, when it announced in October 2004 the launching of the first Google
Print programme: Google Print for Publishers (GPP). For this purpose, Google
has negotiated title-specific contracts with many publishers mainly from the
US, including big houses like Penguin, Taylor & Francis, Blackwell,
Springer, Chicago and Cambridge, to digitise their publications and to make
them available on the internet via the Google search function.
But things didn’t stop there. In December
2004, Google announced the start of another search function, going far beyond
the individual and publishers’ agreements: Google Print for Libraries (GPL).
For two years, Google has negotiated with significant Universities and
Libraries – Harvard, Stanford, Michigan University, the New York Public
Library and Oxford’s Bodleian Library – to scan and digitise parts or the
whole of their collections and to make them searchable on Google Print[i].
Google’s mission – according to its own description – is nothing
less than to “organize the world’s information”[ii].
Google claims that – apart from the
obvious benefit of a free and global access to information – books are
easier to find, to buy from bookshops or to borrow from libraries by the fact
of their digital publication and that therefore the incentives for authors to
write and publishers to sell the books will increase. Its ultimate aim is to
“work with publishers and libraries to create a comprehensive, searchable,
virtual card catalog[ue] of all books in all languages that helps users
discover new books and publishers find new readers”[iii].
Far from welcoming this development with
open arms, publishers and authors have objected vociferously and an action has
been started in the US Courts by the Association of American Publishers and the
Guild of American Authors. In the
meantime Google’s competitors such as Microsoft and Yahoo! are announcing
digitisation projects which are not attracting litigation in the same way.
Dealing with the copyright issue
Google insists that all copyright will be
respected. There are several ways in which the books searched for on GPL can be
viewed:
Internet users will be able to see the
entire text of those books that are in the public domain.
For all those works that are still
considered as copyright protected, Google will provide bibliographic
information and some “snippets” of text that are directly related to the search
term input. This means that internet users will only be able to read those text
extracts of a book that include their search terms – in general just a
few sentences[iv].
To determine which books are considered as
being in the public domain, Google is trying to simplify matters by
distinguishing between users inside and outside the United States. According to
the Google information for publishers on the GPL project, for users in the
United States all books published before 1923 as well as all US government
publications will be treated as books in the public domain. For users outside
the United States, the appropriate local copyright law will be considered.
One immediate issue is that users who live
– or who say they live – in countries with lower copyright
protection will have more access to full text. There is plenty of scope for
abuse.
According to Google, GPL will constitute
“fair use” under US copyright law. It therefore has not sought any licence from
publishers or authors for use of their works in the GPL project.
If, however, a publisher objects to the
digital publication of works to which he holds the copyright, Google says that
he has the ability to “opt out” of the programme. For this, the publisher has
to contact Google, who will then remove the link to the book extracts from its
search results. It has been observed that this will not, of course, change the
fact that his work has been scanned and digitalised in the first place.
Google argues that the digital publication
of books can only be promising for the publishing business. Internet users who
wish to have a look at the complete book will be provided with direct links to
libraries and booksellers where the book can be found. Publishers accepted this
free publicity enthusiastically in the Google GPP agreements. It follows,
according to Google, that GPL would bring the same benefits to publishers.
Reaction to GPL
This claim and the immense power that
Google will gain over publishers works by this systematic digitalisation has
led to a cry of fear from the publishers’ side and to the accusation of a
large-scale violation of copyright law.
On 20 May 2005, the Association of American
University Presses (AAUP) wrote to Google to express their unease with the GPL
project. Part of the problem is that, having worked with Google on the GPP
scheme, the news that the US libraries had entered into agreements for the GPL
project came as a complete surprise to publishers.
The AAUP asked Google 16 “questions” about
the GPL project, many of which were stated objections to the project ending
with a question mark. In addition to taking issue with the interpretation of
fair use, they included:
- If Google thought GPP needed publisher’s agreement, why was
this not the case for GPL?
- How does the opt-out work and where can it be found? The AAUP
said that two publishers had asked that their works not be included in the
project, but they were ignored.
- What protection is there that Google will not at a later date
decide to make the entirety of a book available on a pay per view basis?
- What arrangements are in place to limit access and security
around the digitised copy?
- What is a “snippet”?
These are reasonable points to raise, and
Google appears to have drummed up opposition to GPL simply by failing to adopt
a consultative approach with publishers to the scheme.
Discussions between Google and the
publishers and authors’ bodies (during which the scanning process was
suspended, but has now been restarted) led nowhere, and proceedings have now
been commenced in the US courts against Google.
Fair use in the US
The US Copyright Act 2000 (17 USC §107
(2000)) provides that:
“…fair use of a copyrighted work,
including such use by reproduction in copies… for purposes such as criticism,
comment, news reporting, teaching…, scholarship, or research, is not an
infringement of copyright.”
In assessing whether the use is fair, four
factors are taken into account:
“1.
the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofits 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.”
Google has never explained how GPL meets
the criteria for fair use, but cites the decision of the US Court of Appeals, 9th
Circuit Kelly v Arriba Soft Corp as precedent
for its activities. In the Kelly case a search
engine provider took copies of photos, in which Kelly was the copyright owner,
from Kelly’s website, reduced them to thumbnails (discarding the fullsize
copies) and used the thumbnails to link to the fullsize photos on Kelly’s
website. The Court decided that such activities represented fair use.
This has not persuaded objectors to the GPL
scheme; the AAUP points out that in Kelly, the photographs were already
digitised, and Arriba did not retain the full size image; in the GPL scheme,
Google is digitising without consent, and retaining the digitised copy.
This is not the forum for a detailed
analysis of US law in this area[v]
but there is considerable scope for argument either way.
Position in Europe
The only non-US library participating in
the scheme is the Bodleian Library in Oxford. However the Bodleian has limited
the digitisation programme of its collection to works that are outside
copyright. The British
Library has announced a digitisation project in conjunction with Microsoft, but
again the project is limited to books out of copyright. Clearly, the position in Europe is
different.
Given that the Copyright Directive of 2001[vi]
sets out minimum standards for copyright protection, although considerable
differences exist between the various Member States, it is worth focusing on it
for an overall analysis of the GPL scheme “across the Pond”.
It is easy to see why the Bodleian is
nervous: that the digitisation process will infringe the exclusive reproduction
right under Art 2, and the inclusion of the text in the GPL website, the
exclusive communication right under Art 3 is a no-brainer. But the battle in
Europe, as with the US, is likely to be in the fair use exceptions.
These are provided as permissible
exceptions for Member States, so the extent of the fair use provisions, and
their detail, will vary from country to country. However what is permitted
cannot exceed the scope set out in the Directive.
The relevant fair use provisos set out in
Art 5(2) specifically relating to reproduction as part of the GPL scheme (which
would be the initial digitisation by Google) are:
“(a) …on paper or
any similar medium, effected by the use of any kind of photographic technique…,
provided that the rightholders receive fair compensation;
(b) …on any medium
made by a natural person for private use and for ends that are neither directly
nor indirectly commercial, on condition that the rightholders receive fair
compensation…;
(c)… specific acts
of reproduction made by publicly accessible libraries, educational
establishments or museums, or by archives, which are not for direct or indirect
economic or commercial advantage”.
Since Google is not planning to pay
anything to rightholders in the US GPL scheme, the same plan in Europe could
obviously not use (a) or (b). Nor does section (c) help: the copying needs to
be “specific” (which could be taken to exclude blanket copying) and clearly,
although it is keen to emphasise the public service element of GPL, Google is
likely to obtain some commercial benefit (eg, advertising or link listing
revenue) from the GPL scheme.
Further exceptions are listed in the Art
5(3) of the Directive which cover the reproduction of material, but also its
communication (in this instance, its inclusion in GPL search results):
o
“(a) use for the sole purpose of
illustration for teaching or scientific research… to the extent justified by
the non-commercial purpose to be achieved”.
If Google obtain
research credentials from users, then this fair use provision may cover the
inclusion of the copyright text in the search results. However, it cannot be
used in relation to the initial digitisation, where there is no assessment of
the academic relevance of the text.
o
“(n) use by communication or making
available, for the purpose of research or private study, to individual members
of the public by dedicated terminals on the premises of [public libraries etc]
of works and other subject-matter not subject to purchase or licensing terms
which are contained in their collections”.
Clearly GPL will
not be confined to dedicated terminals of public libraries; were it to be, this
provision could possibly be used by Google.
o
“(o) use in certain other cases of
minor importance where exceptions or limitations already exist under national
law, provided that they only concern analogue uses…”.
GPL is clearly
not “analogue”.
It seems unlikely that GPL would be fair
use under any of the above.
In any event, Art 5(5) states that all fair
use exceptions are subject to the overriding proviso that they will only apply
“…in certain
special cases which do not conflict with a normal exploitation of the work or
other subject-matter and do not unreasonably prejudice the legitimate interests
of the rightholder”,
which means that the overall merits of the
scheme and the impact it will have on publishers need to be considered.
Is it fair?
As mentioned above, Google promotes GPL as
a public service – a virtual card index of the world’s publications.
Clearly it will help students and academics find an appropriate title and in
many cases may result in sales.
Undoubtedly it will help readers without access to a major library to
identify the work they need. Google’s argument is therefore that the publishers
are in effect getting free advertising for their books.
Google is also trying to “walk the walk” of
fair use by, for example, restricting the number of views of a copyright work a
user can access, and including copy-control measures on the website. It is
ensuring that only limited access is given to copyright-protected content.
But there must be a limit to the extent
that fair use rules can justify wholescale copying and distribution of
copyright material to the public.
It would seem to be legitimate for a
publisher or author to have the right to decide whether they want to be part of
the GPL scheme, or set up their own digitisation scheme, possibly on a pay
basis or not digitise at all. If they want to lose sales because they are not
in the scheme, that should be their call – why are they being forced to
advertise?
Google has compared GPL to its web search
engine: to compile its search facility, it has to copy web pages; the copies
are used to rank and present search results meaning the user reaches the
information wanted more easily. Books and webpages are both “out there” to be
seen; just because one costs and the other does not, why should they differ in
their availability?
In the end, the issue probably boils down
to money and pride: the debate would probably not have reached this level if
the publishers had felt that they were more involved in the scheme at an early
stage. Indeed, several major
publishers such as HarperCollins have recently announced plans to digitise
their catalogues and make the contents accessible to search engines.
Google’s no doubt genuine altruistic
motives are accompanied by a desire to increase its traffic and so revenue (if
not, it seems unlikely that, as a public company, they would do it).
Much of the project will consist of
academic publications. As the AAUP has pointed out to Google, such publishers
are usually non-profit making, supported by their parent institutions and have
their costs to cover. This is not therefore a situation where Google can adopt
a Robin Hood defence[vii].
If, as seems likely, Google is getting
financial benefit from the GPL scheme is it unreasonable for the copyright
owners to ask for a slice of the cake? Whatever the fair use arguments of the
text reproduction on the search screen, fair use has never justified copying an
entire book. IP rights has
always been about a balancing of interests between rewarding investment in
creation and innovation while recognising the importance of free flows of
information and ideas. It would
seem that Google, in trying to live by its code of “Don’t be evil” has failed
to recognise this.
This article is an updated version of
an item which appeared in Copyright World issue 153, September 2005.
Eddie Powell
is a partner in the IP/Technology group at Fladgate Fielder in London. His
practice focuses on all types of intellectual property, including trademarks,
commercial transactions and technology projects.
Email: epowell@fladgate.com
Phone: +44
20 7323 4747
