Sticky Fingers: the Google generation

Abstract

In these pages in December 2005 I described how Google was digitising in-copyright works held in United States university libraries without authorisation from the appropriate rightsholders. I mentioned that this had incurred the wrath of the American Publishers Association (APA) and the Authors Guild, as well as their international affiliates. These organisations instituted a class action against Google. Google set out to defend this action by claiming its actions were permissible under the doctrine of fair use in the United States (US) Copyright Act. This doctrine is not enshrined in statutory regulation, as is the case in Australian copyright laws. Because Section 107 of the US Copyright Act sets out four factors that need to be determined before a use can be considered fair, 'fair use' in the United States has developed over time through a substantial number of court cases. 'Fair use' is not recognised by the Australian Copyright Act, which instead grants certain exceptions to users, such as the statutory licence scheme for copying of work in educational institutions under which Copyright Agency Limited (CAL) acts as the declared collecting society. Google aimed to add its unauthorised copying of books to the range of 'fair use '. In order to accomplish a designation of its digitisation as 'fair use', Google would have had to have a US court determine that such use of copyright material could be justified in terms of its 'purpose and character, including whether such use is of commercial nature or is for non-profit educational purposes; the nature of the copyrighted work; 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'. This was always a tough call. Google has now chosen not to continue this course of action, though it denies it violated the copyrights of authors, publisher and other copyright holders. In doing so, Google has implicitly recognised that the digitisation of in-copyright works it undertook was 'unauthorised', and a settlement has been brokered with the APA and the Authors Guild.