23 January 2006
Lost behind the headline-grabbing announcements at the recent Consumer Electronics Show in Las Vegas was Google's decision to march on with its controversial Google Book Search project (previously known as Google Print) in the face of stiff resistance from rights-holder groups in the US.
Google has reportedly responded to the action for copyright infringement brought by the Author's Guild, which represents more than 8,000 writers, by telling a judge that the writers do not own the rights they claim, that Google has a licence to reproduce the works in question and that the suit is prohibited by the US's First Amendment. Meanwhile, the Association of American Publishers has brought a separate action against Google.
The context is this: Google intends to 'digitise' (that is, take scanned copies of) book collections from a number of major libraries, combine these with copies of books submitted by publishers and create an online database of the results that is searchable in the same way as Google can be used to search the web. The controversy arises because Google is digitising books that are still protected by copyright.
If Google were digitising copyright-protected books in the UK, it would be on much shakier ground than it is in the US. In particular, its reliance on the US 'fair use' exemption - which is not limited to fair use for any specific purposes - would be more tenuous given the UK's limited category of 'fair dealing', which includes non-commercial criticism or review, research and private study, or reporting current events. Google has recognised this and is limiting itself in Europe to works where copyright has expired.
The decision by Google to press ahead with the programme in the face of a mixture of extreme hostility and vocal support undoubtedly reflects Google's enormous newfound financial muscle (note the recent announcement about its $1bn (£570m) investment in AOL). Google can afford a couple of expensive, high-profile lawsuits while it continues to digitise apace.
It has also become the focal point for ideological discussions about the purpose of IP protection and the future of copyright in the digital age. These are equally relevant in the UK, where the Government has recently announced that former Financial Times editor Andrew Gowers will conduct a review to consider whether the current technical and legal IP infringement framework reflects the digital environment, and whether provisions for 'fair use' by citizens are reasonable.
Google's critics argue that it is in flagrant breach of copyright; that it is turning IP laws on their head by copying first and only removing access to the works if publishers request it; that it is profiting from the creativity of the authors; and that it should give them a contribution that reflects the profit it expects to receive. Google, and some influential supporters, argue that it is performing a public service by giving new (digital) life to books that would otherwise be inaccessible or forgotten; that publishers and rights-owners stand to benefit because the public will buy copies of the books it finds through Google Book Search; and that this is no different to what Google does with the copyright-protected web content already indexed on the original Google search engine.
Although these cases are being conducted under US laws, in the light of the Gowers review in the UK, it will be very interesting to see how the battle is played out. I am not a US lawyer, but my own suspicion is that Google may find that it is stretching the bounds of 'fair use' more than the courts are willing to accept and that it will be left to the legislators to consider the question of the 'public interest' in allowing Google Book Search to proceed without the need to make payments to authors.
Peter Wainman, solicitor, Mills & Reeve