Limits on Copyright through Google Books: The Need for an International Fair Use

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]

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[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.