Alex Sanchez
Imagine having access to an online catalog of
all the books, in all the languages, in the world. That was Google’s
purpose when it started its Google Books Library Project.[i] In
order to do so, the technological corporation reached several agreements with
institutional libraries, private authors, and publishers to digitalize every
book they had and they would get a digital copy in return.[ii]
Once the digitalization was done, Google would
upload it to its database and users of the search engine could look for terms
in the books. However, Google did not display the complete book,
unless it was in the public domain. Generally, the users of Google
Books could only see three brief snippets of the books, in order for them to
decide whether the book contained the information that they were looking for.
The Google Books Library Project was not very
popular amongst some publishers and copyright owners around the world, who
thought that Google had violated their copyrights. Therefore, they
decided to sue Google for copyright infringement.[iii]
The
case in the United States was decided through the application of the fair use
doctrine. Fair use is an affirmative defense that allows the
reasonable use of someone’s work, without their authorization to do so.[iv]
The
fair use doctrine was codified in Section 107 of the Copyright Act of
1976. The first part of this section recognizes some favored
purposes of fair use: “[C]riticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research.”[v] The second part, establishes four factors that courts
will have to use while analyzing a fair use allegation: “The purpose
and character of the use including whether such use is of a commercial nature
or is for nonprofit educational purposes”, “the nature of the copyrighted
work”, “the amount and substantiality of the portion used in relation to the
copyrighted work as a whole”, and “the effect of the use upon the potential
market for or value of the copyrighted work.”[vi]
The
United States Court of Appeals for the Second Circuit concluded, after
weighting every factor, that fair use protected Google Books. It
held that Google’s use of the works had a highly transformative purpose,
because its function was to allow the searcher to locate some information, not
to just display the complete book.[vii] In addition, Google’s commercial
motivation was irrelevant, because its service was not a significant
substantive competition to the original works.[viii] Moreover,
snippets showed small portions of the books, which could “not threaten the
rights holders with any significant harm to the value of their copyrights or
diminish their harvest of copyright revenue.”[ix]
However,
in France the result was very different.[x] France does not have a
fair use defense. French copyright law only has a closed list of
exceptions to executive rights.[xi] If someone in France uses a
copyrighted work without the owner’s consent, and his conduct is not in any of
the listed exceptions, he or she will be liable for copyright infringement.
The Tribunal
de Grande Instance de Paris held that the short citations exception
did not protect Google’s use of copyrighted books because it did not consider
that it complied with the requirement of information.[xii]
Current international copyright law does not
recognize fair use as a defense to copyright infringement. Quite to
the contrary, the fair use defense in the United States does not comply with
the requirements of article 9 of the Berne Convention.[xiii] However,
fair use is an extremely useful tool in a society with constant technological
changes. Therefore, the international community should adopt the fair use
defense to avoid situations such as the Google Books case.[xiv]
[i]. Google Books, Google Books
Library Project – an Enhanced Card Catalog of the World's Books,
https://books.google.com/googlebooks/library/index.html (last visited July 22,
2017).
[ii]. Lyombe
Eko et al., To Google or Not to Google: The Google Digital
Books Initiative and the Exceptionalist Intellectual Property Law Regimes of
the United States and France, 15 No. 7 J.
Internet L. 12, 14 (2012).
[iii]. Authors
Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), cert. denied,
136 S. Ct. 1658 (2016); see also Tribunal de grande instance
[TGI] [ordinary court of original jurisdiction] Paris, Dec. 18, 2009, Rg 09/00540
(Fr.).
[iv]. See Pub.
Affairs Assocs. Inc. v. Rickover, 268 F. Supp. 444, 450 (D.D.C. 1967).
[v]. 17
U.S.C. § 107 (2012).
[vi]. Id.
[vii]. Authors
Guild, 804 F.3d at 216.
[viii]. Id. at
219.
[ix]. Id. at
224.
[x]. See Tribunal
de grande instance [TGI] [ordinary court of original jurisdiction] Paris, Dec.
18, 2009, Rg 09/00540 (Fr.).
[xi]. See Eric
J. Schwartz, An Overview of the International Treatment of Exceptions,
57 J. Copyright Soc'y U.S.A. 473,
476 (2010).
[xii]. Tribunal
de Grande Instance Paris, Dec. 18, 2009, RG 09/00540 at 16.
[xiii]. Sam
Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related
Rights in the Digital Environment, at 68–69, WIPO Doc. SCCR/9/7 (Apr. 5 2003),
http://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.pdf.
[xiv]. See Schwartz, supra note
11, at 496.
