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BUILDING THE MODERN DAY ALEXANDRIA - DEBATE OVER THE GOOGLE LIBRARY PROJECT
By ANIRUDH WADHWA |
"It dominates the Internet and guides people everywhere" - says the Economist. A meteoric rise, a rebellious attitude, and a professed desire to 'benefit the world'; this is the essence of the Google philosophy. Given this, Google's nonchalant attitude towards legal restrictions that come in its' way of 'benefiting the world', is not surprising. Google's technologies have been implicated in issues concerning monopoly practices, privacy, free speech, infringement of intellectual property rights etc. etc.
Till now Google has managed to emerge stronger after every challenge. The latest challenge however, is a whole new ball-game. Titled the "Google Books Search", it is an ambitious attempt to "make the full text of all the world's books searchable by anyone."
The 'Design'
The works within Google's database come from two sources - Google Books Partner Program and the Google Books Library Project. The Partner program requires copyright-holders to consent before Google digitizes their copyrighted materials, and in turn they can share the revenues that their works generate. However, for the Library project, Google has tied-up with 5 biggest libraries in the UK and US, and plans to digitize their entire collection. Google's activities, raise two distinct copyright concerns - first is the creation and archival of digital copies of the copyrighted works on Google's database [the 'intermediate' copies]. Second is the display of "snippets" from the archived works, based on the user's search query.
Google has given copyright holders the option to "opt-out" of the project if they so wish. So if any copyright holder so chooses, he can ensure that Google does not take up his work for digitization. This has raised the concern that if Google gets its' way, it will mean shifting the burden of stopping infringement on the copyright owner rather than the user.
The 'Quagmire'
The publishing industry's opinion stands divided on Google's ambitious project. While some hail the potential for public benefit; many publishers and authors allege that this constitutes a massive "piracy of their copyrights". The law requires Google to request permission to copy, rather than forcing the owners to ask Google not to copy. This "opt-out" policy of Google has been famously referred to as "seeking to turn copyright law on it's ear." Angry and furious, the Author's Guild and the Association of American University Publishers (AAP) have initiated legal proceedings against Google claiming copyright infringement. Undaunted, Google rests the future of its Project on the back of the "fair-use" doctrine.
The 'Analysis'
The purpose of copyright law is one of balancing the interests of various groups, and this is reflected in the way copyright law has evolved. It was recognized early that even an unauthorized use of a copyrighted work is allowed where the usage will not undermine the 'incentive to create'. This is the basis of the "fair-use" doctrine. The popular press and even academics of repute have been taken in by Google's PR campaign likening the Project to an "online card-catalogue." However, the issue is not as simple as that, and these facts deserve a more nuanced analysis.
A 'Fair-Use'?
Google's display of snippets is only possible because of Google's prior copying of entire books. Google's best argument against this charge is to establish this as a step in the larger process that is defensible as a fair-use. This then begs the question - whether the display of the "snippets" is a fair-use in the first place?
Google's and its' supporters' arguments proceeds on two grounds.
Display of "snippets"
It appears that Google's principal argument will be that the digital copies of books serve "an entirely different function" from the original analogue copy. Since, the snippets perform the function of a "search catalogue" and do not replace the original copies, they do they in any way compete with them and hence, Google's argument goes that it should be a fair-use. This argument finds some support in the decision of Kelly v. Arriba where the SECOND CIRCUIT Court held the thumbnailing of copyright images by search engines to be a fair use. Kelly held that since thumbnails could not be expanded into full photographs, it did not affect the market for the full photographs.
However, in case of Google Books, the "snippets" of the works could theoretically be combined together to recreate the whole work, or at least, the relevant "heart" of the work. While Google maintains that the "snippets" are insubstantial when compared to the whole work, it misses out the point that "snippets" are substantial in relation to the particular search. In one sense, even though Google gives the illusion of limited access by displaying "snippets", it is in effect, making the entirety of the work available as "snippets".
Google's argument also ignores the market for viewing of "snippets", and "searching capabilities" of digitized versions of books. The existence of Google's Partner Program, as well as 'legal' initiatives taken by Yahoo!, Microsoft and Amazon.com reveal that there clearly exists such a market for copyright holders. In the face of this, any Court denying harm to the market for snippets, would be open to the charge of circular argumentation.
Google is making available what is, by conventional means, the highest grade of information, without paying the normal price for it. The fact that Google has commercial motives, and has potentially a lot to gain from the digitization of these books, without paying the normal fees for the copyright licenses, favours a finding against fair-use.
"Opt-Out" - An 'Implied' License?
Google allows copyright holders to "opt-out" of the project. This makes economic sense on the face of it - since otherwise the works where the costs of locating the copyright holder is too high, may never get digitized. Google's may also find support in Field v. Google where the DISTRICT COURT OF NEVADA articulated a theory of "implied license" in the context of automated indexing of websites by search engines. The Court held that industry standards had developed a "well recognized and well established" opt-out procedure, and the fact that the complainant had failed to indicate his preference to opt-out indicated an "implied-license" to Google to archive his website.
However, if one looks beyond this case, the argument suggests more than what appears at face-value. If this argument is accepted, it will shift the onus to prevent copyright infringement on the copyright holder rather than the user. An astonishing proposition indeed!
In any case, it is clear that Field's case dealt with a situation on the Internet, where industry standards and procedures for "opting out" had already been well established. In the case of the print industry, this is a novel phenomenon and as yet there is no "established" industry practice. One cannot expect the copyright holders to look out for every infringing use of their work, and then keep "opting out" from each one of them.
Conclusion: An 'Equitable Rule of Reason'
The discussion above has focused only on the legal arguments, however one must also justify one's conclusions on an "equitable rule of reason." Since Google's project strikes at the very root of traditional copyright laws, the larger issue therefore is, should Google be allowed to do this? It is clear that Google's project has the potential to revolutionize information research. However, does it mean that the Courts are justified to distort copyright law beyond its established contours to ensure that Google gets its way? I would think not.
No Court will be able to find in favour of Google without significant judicial over-reach. What needs to be remembered that the challenge is not against Google, but against the distortions that Google is trying to bring about to copyright law. Google might be a great company. But, a decision favouring Google will set a precedent for all future cases. It has the potential to upset the delicate balance set by copyright law and will open up floodgates to allow unrestricted and widespread conduct of this sort.
Turning "copyright law on its ear" is not something that the Courts are either empowered or competent to do. This is for good reason. One needs to find a legislative solution for giving fair compensation to the copyright holders and also ensuring that the public benefits by such a project. A fair accommodation of various interests is possible only through legislative action and not through a distorted reading of the "fair-use" doctrine.
(The writer is a fifth year B.A. LLB (Hons.) student at the National Law School of India University, Bangalore).
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