1 SIMPSONS SOLICITORS Get it on Google: Google Book Search A review of the US actions against Google Inc. and the implications in Australia Kasey Ekert

2 SIMPSONS SOLICITORS Google Book Search Is this the end of libraries as we know them today? Google Inc. Market Capitalization: $85 billion More than 200 million search queries per day Revenue in 2004: over $3 billion

3 SIMPSONS SOLICITORS Google Book Search Google Print Program : 1.Partner Program and Library Project 2.Actions commenced against Google in the US –Is Google’s use a ‘fair use’? 3.Australian position

4 SIMPSONS SOLICITORS PRINT PROGRAM PUBLISHERSLIBRARIES PARTNER LIBRARY PROGRAM PROJECT GOOGLE BOOK SEARCH DATABASE

5 SIMPSONS SOLICITORS Google Print - Partner Program What does it involve? Publisher: –Identifies works –Enters into agreement with Google –Consents to sample pages being viewed by users Google: –Scans and indexes the full text of the works in the Book Search database

6 SIMPSONS SOLICITORS Google Book Search © 2006 Google

7 SIMPSONS SOLICITORS Google Book Search - Sample Pages © 2006 Google

8 SIMPSONS SOLICITORS Google Book Search - ‘Snippet’ view © 2006 Google

9 SIMPSONS SOLICITORS Google Partner Program Piracy concerns? Risk of Online Piracy: Is Google capable of keeping works safe from online piracy? No guarantees in agreement with publishers… Piracy surfacing on blogs Balancing act for publishers

10 SIMPSONS SOLICITORS Google Library Project What is the Library Project? Material sourced from: –Libraries of Harvard, Stanford, Oxford and Michigan Universities –New York Public library Agreements vary - some full access, others limited ‘Snippet’ view / Sample pages / Full text

11 SIMPSONS SOLICITORS Google Library Project Public Benefit Simple, comprehensive and user friendly search engine Searches leading research libraries “Man on the moon initiative” “We see a world where all books are online and searchable”

12 SIMPSONS SOLICITORS Google Library Project Concerns : Association of American Publishers immediately raised its concerns about copyright infringement Google’s fix: opt-out mechanism for publishers

13 SIMPSONS SOLICITORS Google Library Project Actions Against Google Actions commenced by: –Authors Guild + individual authors –5 major publishing houses on behalf of the AAP Claiming that Google’s conduct constitutes an infringement of copyright under the United States Copyright Act 1976

14 SIMPSONS SOLICITORS Sec Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: 1.To reproduce the copyrighted work in copies or phonorecords; 2.To prepare derivative works based upon the copyrighted work; 3.To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; 4.In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; 5.In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and 6.In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

15 SIMPSONS SOLICITORS Google Library Project Potentially infringing conduct Scanning the full text of a book into Book Search database Search results published on a user’s screen as a result of a search query Google’s justification? ‘Fair Use’

16 SIMPSONS SOLICITORS Google Library Project Is it a ‘fair use’? Sec Limitations on exclusive rights: Fair use: “ Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

17 SIMPSONS SOLICITORS Google Library Project Is it a ‘fair use’? Section 107 sets out a four factor test: 1.The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2.The nature of the copyrighted work; 3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4.The effect of the use upon the potential market for or value of the copyrighted work.

18 SIMPSONS SOLICITORS Kelly v Arriba Soft Corporation Search engine operator Copied images from websites without consent Stored thumbnail copies of the images in its database Users clicked on thumbnail image and were provided with a link to original website from which image had been sourced

19 SIMPSONS SOLICITORS Kelly v Arriba Soft Corporation Factor 1: ‘Purpose and character of the use, including whether the use is of a commercial nature’ Court acknowledged Arriba’s commercial purpose Arriba’s use described as ‘More incidental and less exploitative in nature than the more traditional types of commercial use’ Compared Arriba’s use to Napster’s commercial use

20 SIMPSONS SOLICITORS Kelly v Arriba Soft Corporation Factor 1: ‘Purpose and character of the use, including whether the use is of a commercial nature’ Did Arriba’s use supersede the object of the original images or instead add a different purpose or character? Kelly’s works: –Artistic original works –Purpose: to inform and engage the viewer in an aesthetic manner Arriba’s works: –Purpose: Providing a ‘tool to help index and improve access to images on the internet’.

21 SIMPSONS SOLICITORS Kelly v Arriba Soft Corporation Factor 1: ‘Purpose and character of the use, including whether the use is of a commercial nature’ Arriba’s use “promotes the goals of the Copyright Act and the fair use exception” because the thumbnail images “do not supplant the need for the originals” and, they “benefit the public by enhancing information gathering techniques on the internet”

22 SIMPSONS SOLICITORS Google Library Project Factor 1: ‘Purpose and character of the use, including whether the use is of a commercial nature’ Similarities: Commercial component to the Library program Only ‘snippets’ available Works not being used to promote Google Not attempting to sell the works Differences: Works are being digitised for the first time…

23 SIMPSONS SOLICITORS Kelly v Arriba Soft Corporation Factor 2: ‘Nature of the copyright work’ In Arriba’s case: Artistic works - ‘closer to the core’ of intended copyright protection On the other hand….. Published works - more likely to qualify as fair use

24 SIMPSONS SOLICITORS Google Library Project Factor 2: ‘Nature of the copyright work’ The Library project involves: Published works Vast majority will be non-fiction works Google likely to succeed on this point

25 SIMPSONS SOLICITORS Kelly v Arriba Soft Corporation Factor 3: ‘Amount and substantiality of the portion used in relation to the copyright work as a whole’ Confirmed that copying entire work weighs against a finding of fair use. However…. –must be considered in light of the purpose and character of the use If a secondary user only copies “as much as is necessary for their intended use”, this factor will not weigh against them

26 SIMPSONS SOLICITORS Google Library Project Factor 3: ‘Amount and substantiality of the portion used in relation to the copyright work as a whole’ Google will argue: Copying of an entire book is a necessary step in providing a comprehensive book search engine

27 SIMPSONS SOLICITORS Kelly v Arriba Soft Corporation Factor 4: ‘The effect of the use upon the potential market for or value of the copyrighted work’ Search engine ‘would guide users to the original website’ Potentially enhance the value of Kelly’s works Thumbnail images would not impact on Kelly’s ability to sell or license the works

28 SIMPSONS SOLICITORS Google Library Project Factor 4: ‘The effect of the use upon the potential market for or value of the copyrighted work’ Increased exposure - may increase demand for some books However: Potential impact on the market for fact-based books? –Users can retrieve information that they need without purchasing the book

29 SIMPSONS SOLICITORS © 2006 Google

30 SIMPSONS SOLICITORS © 2006 Google

31 SIMPSONS SOLICITORS Is Google likely to succeed? In light of Arriba’s case: Google has a good chance of successfully defending its actions as a ‘fair use’ under the United States Copyright Act.

32 SIMPSONS SOLICITORS Library Project Position in Australia Copyright laws are territorial What potential acts of infringement are taking place in Australia? –Scanning of full text taking place in the US –Reproduction of search results on users computer in Australia?

33 SIMPSONS SOLICITORS Library Project Position in Australia Search results: Will they constitute a substantial reproduction of the work? Many cases - search results will not be a substantial reproduction Key phrases from poems or short stories –Potential substantial reproduction of the work

34 SIMPSONS SOLICITORS Library Project Position in Australia Could Google defend its actions as a ‘fair dealing’ under the Australian Copyright Act? Fair dealing defence in Australia is a set of specific exceptions US defence of ‘fair use’ much broader than Australian ‘fair dealing’ defence

35 SIMPSONS SOLICITORS Library Project Position in Australia Section 40 (1): Fair dealing for purpose of research or study: A fair dealing with a literary work, for the purpose of research or study does not constitute an infringement of the copyright in the work.

36 SIMPSONS SOLICITORS Library Project Position in Australia Section 40(2) Factors to consider: the purpose and character of the dealing; the nature of the work or adaptation; the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price; the effect of the dealing upon the potential market for, or value of, the work or adaptation; and where part only of the work is reproduced, the amount and substantiality of the part copied in relation to the whole work

37 SIMPSONS SOLICITORS Library Project Position in Australia Is Google engaging in research or study? De Garis v Nevelle Jeffries Purpose of the person making the dealing that is relevant Google would not succeed in defending its actions as a fair dealing for the purposes of research or study

38 SIMPSONS SOLICITORS Google Library Project In summary: Personal view - useful research tool Publishers should be mindful of online piracy Google likely to succeed in defending actions as a fair use in the US However, in Australia, Google’s actions would not be considered a fair dealing for the purpose of research or study