While the Author’s Guild case against Google over their book scanning project continues to wade through procedural matters, the parallel case against universities who partnered in the project reached an emphatic decision last Thursday. Judge Harold Baer of a New York District Court found the universities’ scanning of their collections for search and indexing, preservation, and accessibility purposes to be fair use – without the case even needing to go to a jury (See Nancy Sims’ blog for more on the implications of the summary judgement.)

In light of the ALRC’s current inquiry into copyright exceptions, decisions like this one have a heightened relevance for Australia’s copyright regime. Questions in the ALRC Issues Paper direct submitters to consider whether Australia should implement a broad, open ended exception, as well as consider the activities of libraries and archives in the digital environment and the types of amendments that can allow for ‘greater digitisation and communication of works by public and cultural institutions.’ Judge Baer’s decision offers some timely guidance on how a flexible exception could support these activities.

You can read the full text of the decision here. Below is a quick account of the background of the case, and some of the important contextual factors discussed by the Court. There was a lot of really useful analysis undertaken on the fair use defence - too much for one blog post  - so you can read our summary of the fair use analysis in Part II.

The digitised scans of works in the libraries' holdings are collectively held in the HathiTrust (pronounced ‘hah-tee trust’) Digital Library (HDL). HDL was set up as part of the Google partnership; in return for allowing Google to scan their holdings, the universities received a digital copy of each work scanned. Currently there are over 10.5 million works in the HDL. Having developed a rigorous system for determining whether a work is still in copyright, the HDL displays full text versions of public domain works on its website. As to the remaining 73% of works deemed to still be in copyright, HDL offers limited access: allowing the text to be searched (but not viewed) by users, and offering verified full text access to persons with a print disability.

The Author’s Guild and the other plaintiffs in the case argued that HDL’s scanning and use of the digital copies of the works was infringement, not protected by the fair use defence. For those of us who need a little brushing up on our US Copyright law, fair use operates as a defence to copyright infringement. Unlike the Australian ‘Fair Dealing’ exceptions, fair use is not limited to a specific set of purposes. Rather, fair use is an open ended exception, and the statute lists four factors which the court must consider in determining whether a use is ‘fair’ and furthers the goals of copyright - that is, promotes the progress of science and the arts. The four factors are:

1.       The purpose and character of the use

2.       The nature of the copyrighted work being used

3.       The amount and substantiality of the portion used

4.       The effect of the use on the potential market for the work

Before moving on to the specific analysis of these four factors, the Court made some important points about the way that fair use should be applied to libraries and mass digitisation projects: 

Fair use applies in addition to specific library exceptions – Judge Baer found that, despite there being specific provisions in the US Copyright Act allowing libraries to undertake certain activities with their collections, this did not preclude them from taking advantage of the fair use defence for activities that fell outside of the specific library exceptions. Specific exceptions are useful for providing certainty to institutions worried about being able to carry out their core functions, but they should be viewed as a ‘floor’ rather than a ‘ceiling’ for allowed uses. Specific exceptions should not be used to curtail the permissible boundaries of a broader exception, rather, as Judge Baer put it “fair use does not undermine Section 108, but rather supplements it.” (Judgement p 13)

Interpretation of ‘systematic’: large-scale copying is not automatically unlawful  – The Court rejected the plaintiff’s argument that the mass digitisation of the universities’ library holdings was a ‘systematic violation’ , preferring the defendants’ interpretation of ‘systematic’ as referring to a process where many copies of one work are created rather than one copy of many works. This is important for future mass digitisation projects and their compliance with the 3 Step Test ‘special case’ requirement. 

Click here to read more about the Court's fair use analysis in Part II.