Armageddon on the Digital Superhighway: Will the Google E-Library Project weather the storm ? Akhil Prasad & Aditi Agarwala IV Year, B.Com. LL.B. (Hons.) Gujarat National Law University
Copyright - A Stimulus to Creativity - Slide no. 3 From the Past to the Present – The Era of Digitization - Slide no. 4 Case Background & Google’s policy - Slide no. 6-8 Twin Goal of Copyright Law - Slide no. 10 Fair Use - 4 Factor Test (explained) - Slide no. 12-17 Advocating Googlelization - Slide no. 18 On a concluding note…… - Slide no. 19 Content Layout
Copyright - A Stimulus to Creativity <ul><li>Positive Right - Right to make ‘copies’/ </li></ul><ul><li>authorize reproduction of copies. </li></ul><ul><li>Negative Right </li></ul><ul><li>Historical Roots – Queen Anne’s statute </li></ul><ul><li>Copyright law receives Constitutional patronage </li></ul><ul><li>Concept of Public Domain. </li></ul><ul><li>Limited property right for limited duration. </li></ul>
From the Past to the Present – The Era of Digitization The Internet Archive, founded in 1996 is an initiative, a nonprofit founded to build a digital library offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format. Project Gutenberg , the first and the largest producer of free electronic books (e-books), has placed thousands of e-books on the web since 1989.
However what about the books enjoying copyright protection. Can they be digitized without the permission of the owner of the copyright? Amongst the bundle of rights which the copyright owner enjoys under the aegis of the statute, one of the most important from the economic perspective is the right of reproduction or to authorize reproduction of copies in which he owns the copyright
<ul><li>Scanning </li></ul><ul><li>Digitizing </li></ul><ul><li>Making searchable parts of all of the collections </li></ul>Harvard University Stanford University Oxford University University of Michigan New York Public Library Under the Google Book Search Project , the search giant is
Google’s Policy of the Digitization Project <ul><li>It is scanning copyrighted books from these </li></ul><ul><li>5 libraries. </li></ul><ul><li>One digital copy shall be given to the libraries for archival purposes. </li></ul><ul><li>E-Cataloguing and Free Download of works in the public domain. </li></ul><ul><li>To provide a search index of copyrighted digitized work and show few snippets of each work. </li></ul><ul><li>Providing a purchase option to the customer. </li></ul><ul><li>Opt out policy. </li></ul>
The Library Exemption <ul><li>solely for the purposes of preservation & security or </li></ul><ul><li>for deposit for research use in another library or archives. </li></ul><ul><li>Applies to </li></ul><ul><li>- unpublished works </li></ul><ul><li>- out of print works </li></ul><ul><li>- replacements for damaged and lost works </li></ul><ul><li>Maximum 3 copies can be produced </li></ul>
4 Factor Test <ul><li>The Purpose & Character of the use. </li></ul><ul><li>Nature of the Copyright </li></ul><ul><li>Amount & Substantiality of the portion used in relation to the Copyright work as a whole. </li></ul><ul><li>Effect of the use upon the potential market . </li></ul>Folsom v. Marsh 9 F. Cas. 342 (1841 ) 4 Factors are:
First Test: Purpose & Character of Use <ul><li>Whether such use is of commercial nature or for non </li></ul><ul><li>profit educational purposes? </li></ul><ul><li>It has been observed by the U.S. Supreme Court that </li></ul><ul><li>the purpose of the use should be non commercial for </li></ul><ul><li>a “commercial or profit making purpose … would be </li></ul><ul><li>presumptively unfair” while a non commercial use </li></ul><ul><li>would raise a presumption of fairness.  </li></ul><ul><li>Subsequently it was held that “the crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price.”  </li></ul><ul><li>Google is selling advertisement space and building a search database and not exploiting the work in the ‘commercial sense’ of copyright. </li></ul><ul><li> Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417, 449, 104 S. Ct, 774, 792 (1984) </li></ul><ul><li> Harper & Row Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 562; 105 S. Ct. 2218, 2231 (1985) </li></ul>
Third Test: Amount and Substantiality of the portion used Though Google is scanning entire books what will be visible to the netizen while searching would not be more than a few snippets. Thus for the purposes of copyright it is ‘de minimis’.
Fourth Test: Effect of the use upon the potential market . It is improving the marketability of the work by making the same more “discoverable”. Purchase option is given, the money of which shall go to the right holders. Any party (author or publisher) claiming that the project is or shall cause harm to the market of the work or is of the slightest opinion that has the likelihood of causing harm can resort to the opt out policy and thus exclude his work out of the digitization project.
Advocating Googlelization of Libraries What is to be appreciated is that Google is promoting the legitimate interests of the right holders and not unreasonably prejudicing their interests. It is serving the society, though earning profits but not by appropriating labors of the authors. It is also providing that latitude to the right holders to withdraw their works i.e. ‘opt out’ in case they are of the view that scanning and subsequent digitization without their permission and minus paying them any consideration shall cause unreasonable prejudice to the legitimate interest of the right holders.
On a concluding note… Thus, the final outcome of the Google project is based on perhaps the most fundamental role of copyright law of securing a legal monopoly to the authors for a limited time & of a limited nature. Information and knowledge serve no purpose unless they are communicated or transferred to others. Digitization of books will ensure that information can serve freely serve this purpose. All information, especially those contained in books, should be digitized so that they can be used in a variety of ways. These new uses of information will ultimately benefit of society. There is no reason why such mammoth investment projects should be shown the red signal considering that both the parties and each end of the scales of copyright, are greatly benefited by the balance we call Google.