The US ‘fair use’ provision and Google Books

By Michael Stevenson

In November, the US District Court of the Southern District of New York gave a significant judgment on the scope of the US ‘fair use’ provision, holding that Google’s acts in relation to the Google Books project constitute fair use.

The Google Books project consists of two parts — the Partner Program and the Library Project. Under the Partner Program, works are provided to Google with the consent of the rights holder, to be electronically scanned and made searchable on the internet. As at early 2012, 2.5 million works were covered. The Library Project involves libraries providing works to Google to be scanned. An electronic copy of the work is returned to the library, and this is also added to Google’s database. Internet users can search for words and phrases across the entire database, returning a list of works containing the relevant search terms together with relevant information, links to sellers and libraries and small sections of the pages where the search terms are found. As at 2012, the Library Project covered approximately 20 million books.

For the purposes of November’s hearing, the court limited its consideration to the sole issue of whether Google’s acts fell within the fair-use provision of US copyright law. The court considered the four factors set out in §107 of the Copyright Act, explaining that these factors provide general guidance only, to be explored and weighed together in light of the underlying purposes of copyright…

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