Ganley GoogleBookSearch

Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying (Working Paper,
13 January 2006)
Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying
PAUL GANLEY
1. Introduction Googles ambition to digitise the worlds books, make them fully searchable, and the U.S. copyright lawsuits this ambition has spawned, have the makings of a great IP law exam question. This question should ask (a) whether Google can do as it proposes under existing copyright laws; and (b) whether Google should be allowed to do so. The goal of this article is to offer a perspective on both the positive and normative components of that question. Part 2 begins to attempt to answer the question posed by explaining how Googles Book Search program (Google Book Search, formerly 'Google Print') operates and briefly describing the two lawsuits issued against the service by the Authors Guild and a number of prominent publishers. Part 3 offers a preliminary assessment of whether Googles activities are lawful under U.S. copyright law. In attempting to answer this question, Googles case is presented with a positive spin; not in an effort to predict the outcome of any future trial, but rather to illustrate that Google at least has a good arguable case under U.S. copyright law that its use is a privileged one. Part 4 then considers how Google would fare under U.K. law. The conclusion, unlike the U.S. law analysis, suggests that Google would have little chance of success if its case was being heard in the U.K. Part 5 asks whether this is a desirable result and concludes that, given recent advances in the technological landscape, it is not. This conclusion is based, in particular, on two theories recently articulated by prominent U.S. academics. Finally, Part 6 describes how U.K. copyright law could accommodate uses such as Googles within its existing scheme of exceptions. A specific defence for intermediary copying premised on the temporary copies exception recently enacted as section 28A of the Copyright, Designs and Patents Act 1988 (CDPA 1988) is outlined, and alternatively a new defence of fair dealing for informational purposes is proposed.
The author is a trainee solicitor at Baker & McKenzie LLP in London and may be contacted at paul.ganley@bakernet.com. Thanks go to Robbie Downing for comments on an earlier draft version of this article. The views expressed in this article are the authors own and do not necessarily reflect the views of Baker & McKenzie LLP or its clients. All errors and omissions remain the sole responsibility of the author.
Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying (Working Paper, 13 January 2006)
What is particularly interesting about Google's predicament is that rather than presenting the U.S. courts with another round of greedy pirates versus greedy record companies as has been standard of late,1 the action pits authors against one of the worlds great innovators. This is, at last, a law suit for the good guys. Consequently, the outcome is likely to have profound implications for legitimate technology businesses and the future of the emerging information space we call the internet. First a note of caution. In this article Google Book Search is used as a frame for discussing the broader issue of the desirability of and mechanisms for introducing an affirmative defence of 'intermediary' or 'informational' use into U.K. copyright law. Google Book Search itself is in a state of flux,2 and the lawsuits are ongoing - indeed they may have settled by the time this article is published. Whilst the factual situation may have changed from the time when this article was prepared (late 2005) it is hoped that the wider arguments presented here will continue to resonate. 2. How Does Google Book Search Work? Google Book Search operates in a number of different ways depending on whether particular books have been submitted by the publisher for inclusion in the program and whether copyright subsists in the work in question. At this stage it is critical to differentiate between books made available as part of the Google Book Search Publisher Program and those made available via the Google Book Search Library Project. Google Book Search Publisher Program When a book has been submitted by the publisher and digitised by Google, a user may perform full-text searches on its content and view a chapter excerpt (typically 3-7 pages).3 The user is also provided with links to the book's table of contents, bibliographic information,
See, e.g., A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004 (9th Cir. 2001); In re Aimster Copyright Litigation 334 F.3d 643 (7th Cir. 2003); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 (2005) S. Ct 2764. 2 On 17 November, for example, Google announced that it was changing the name of the service from Google Print to Google Book Search. As explained by Jen Grant, Google's Product Marketing Manager, the name change was partly in response to confusion as to what users would actually be able to do with the service. See Jen Grant, 'Judging Book Search by its cover' (17 November 2005) at http://googleblog.blogspot.com/2005/11/judging-book-search-by-its-cover.html (last visited 12 January 2006) 3 For a full description of the Google Book Search Publisher Program see http://www.print.google.com/googleprint/publisher.html (last visited 12 January 2006)
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the book's copyright notice and the index. A search box allows users to search for additional terms that appear in the book although limits are placed on the total amount of the book that can be viewed. A series of links headed 'Buy this book' direct the user to external websites where the user may purchase the book. Typically the publisher's website appears at the top of the list, but links to other popular online book sellers such as Amazon.co.uk, Blackwell's and WHSmith are also provided. The book is submitted to the Google Book Search Publisher Program by the publisher under the terms of an agreement entered into by Google and the publisher. This agreement amounts to a license to use the work, and this article will not consider any of the copyright issues arising under the program. Google Book Search Library Project In December 2004 Google reached agreements with the libraries at Harvard University, The University of Michigan, Stanford University and Oxford University along with The New York Public Library to scan parts of their collections of books and make the digitised contents searchable online.4 In return for granting access to their collections amounting to approximately 10.5 million unique titles5 - the libraries will receive an electronic copy of the books they provide to Google. This will save the libraries substantial copying costs as they attempt to integrate electronic access with their existing service offerings.6 The project is expected to take 10 years to complete and cost approximately $100m. Books appearing on Google Book Search as part of the Library Project are distinguished according to the copyright status of the work in question. Public domain works provided by the libraries will be made available in their entirety via Google. Users can read the complete book. For these books, Google Book Search is in effect an eBook delivery mechanism.
'Google Checks out Library Books' Google Press Release (14 December 2004) available at: http://www.google.com/press/pressrel/print_library.html (last visited 12 January 2006) 5 See Brian Lavoie et al, 'Anatomy of Aggregate Collections: The Example of Google Print for Libraries' D-Lib Magazine (September 2005) available at http://www.dlib.org/dlib/september05/lavoie/09lavoie.html (last visited 12 January 2006) 6 See, e.g., 'Oxford University-Google Digitization Programme: FAQs' available via http://www.bodley.ox.ac.uk/google/ (last visited 12 January 2006) ("The Oxford copy will be linked to the appropriate record in the University's union catalogue, Oxford Libraries Information Service (OLIS). This will greatly enrich the existing depth of the catalogue both as a finding aid and a gateway to the wealth of information already accessible via OLIS.")
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The interesting copyright questions concern those books whose copyright subsists. Google will scan the entire book. When a user searches for a term that appears in the book, a page is returned indicating the number of times that term appears in the work, up to three instances of the search term including a sentence or two on either side of the particular word or phrase, bibliographic information, web links to new or used book sellers, web links to local libraries that have the book in their collection, and web links to online reviews of the work in question. It bears repeating: the user will only be able to view a tiny fraction of the book's contents; typically a few sentences from different segments of the book. The lawsuits filed against Google relate to this aspect of the Google Book Search program. Since the Library Project's inception, Google has maintained that it does not need to obtain permission from rights holders to make use of books in the manner described. Many publishers take a different view.7 During negotiations the Association of American Publishers (AAP) proposed that Google should use the ISBN book-numbering system adopted as an international standard in 1970 - to determine what permissions are required. For out-of-print books without an ISBN number, the AAP was prepared to adopt a "more relaxed" approach.8 Google objected to the onus being placed on it to actively seek permission to use the work. Instead, on 12 August 2005, it introduced an 'opt-out' policy whereby scanning was suspended until 1 November 2005 to give publishers time to compile and provide Google with lists of books to be excluded from the Library Project. Publishers were unhappy with this proposal. The AAP's CEO, Patricia Schroeder, for example, complained that "Google's procedure shifts the responsibility for preventing infringement to the copyright owner rather than the user, turning every principle of copyright law on its ear."9 Likewise the Association of American University Presses (AAUP) stated that "Google, an enormously successful company, claims a sweeping right to appropriate the property of others for its own commercial use unless it is told, case by case and instance by
A notable exception is Tim O'Reilly of O'Reilly publishing who extolled the virtues of Google Book Search in a New York Times opinion piece. See Tim O'Reilly, 'Search and Rescue' New York Times (28 September 2005) 8 Burt Helm, 'Google's Escalating Book Battle' Business Week Online (20 October 2005) available at http://www.businessweek.com/technology/content/oct2005/tc20051020_802225.ht m (last visited 12 January 2006) 9 'Google Library Project Raises Serious Questions for Publishers and Authors' AAP Press Release (12 August 2005) available at (last http://www.publishers.org/press/releases.cfm?PressReleaseArticleID=274 visited 12 January 2006)
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instance, not to. In our view this contradicts both law and common sense."10 The first lawsuit followed in September. The Lawsuits On 20 September 2005 the Author's Guild a body representing more that 8,000 published American authors - along with a biographer, a children's author and a former U.S. Poet Laureate launched a class action law suit against Google in New York alleging "massive copyright infringement" on the part of the defendant.11 The lawsuit alleges that Google has infringed copyright by scanning and making available for commercial purposes copies of books provided by the University of Michigan library and written by the named authors or the unnamed authors represented by the Author's Guild. The lawsuit accuses Google of "reproducing for itself a copy of those works not in the public domain" without having obtained authorisation from the holders of the copyrights in the works and "reproducing digital copies for its own commercial use and for the use of others" on its commercial website.12 The lawsuit emphasises the commercial nature of the project noting "Google intends to derive revenue from [the] program by attracting more viewers and advertisers to its site" and that Google "derives approximately 98% of its revenues directly from the sale of advertising."13 Furthermore, the lawsuit states that "Google's existing and planned use of the [w]orks does not fall within any of the statutory exceptions to copyright infringement."14 The lawsuit recognises that the harm to each individual author may be "relatively small" and argues that a class action suit is the appropriate method for dealing with the complaint.15 It further specifies that authors have suffered harm including "depreciation in the value and ability to license and sell their [w]orks," "lost profits and/or opportunities," and "damage to their goodwill and reputation."16 Claiming that Google has acted wilfully, the authors seek statutory damages and/or actual damages for the named authors and the class, an account of profits, an injunction to prevent further
'Google's New Opt-Out Policy' AAUP Press Release (19 August 2005) available at http://aaupnet.org/aboutup/issues/81905.html (last visited 12 January 2006) 11 A copy of the compliant is available at http://scrawford.net/courses/AuthorsGuildGoogleComplaint.doc (last visited 12 January 2006) (hereinafter, 'Author's Guild Complaint') 12 Author's Guild Complaint, paras.3 and 5 13 Author's Guild Complaint, paras.5 and 28 14 Author's Guild Complaint, para.48 15 Author's Guild Complaint, para.27. 16 Author's Guild Complaint, para.34
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infringement and judgment declaring that Google's actions are unlawful. On 19 October 2005 a group of publishers including McGraw-Hill, Pearson, Penguin (USA), Simon & Schuster and John Wiley also filed a lawsuit against Google.17 The publishers are not seeking damages from Google. Instead they request injunctive relief against the operation of the Library Project and an order requiring Google to delete copies of their works from its servers. The suit covers much of the same ground as the Author's Guild complaint. It highlights the commercial nature of Google's use and rubbishes the opt-out policy as "contrary to the black letter requirements of the Copyright Act."18 The lawsuit discusses the "adverse impact on the potential market for Publishers' books."19 The publishers argue that they have "developed and are continuing to develop various means of making electronic copies of their own works available consistent with their exclusive rights under copyright," and cite the Open Content Alliance as an example of this.20 The publishers also point out that sources of "ancillary revenue" including the licensing of the use of excerpts are vital with regards non-mass market titles.21 Finally, the publishers claim there is no "principled distinction" between the Publisher Program and the Library Project other than the fact that Google seeks permission to include books in the Publisher Program but ignores this requirement with regards the Library Project.22 Google's Response Google initially chose to respond to the Author's Guild law suit via its corporate blog. Writing on the same day the law suit was filed Susan Wojcicki, VP Product Management, stated:
A copy of the compliant is available at http://www.publishers.org/press/pdf/40%20McGraw-Hill%20v.%20Google.pdf (last visited 12 January 2006) (hereinafter, 'Publishers' Complaint') 18 Publishers' Complaint, para.33 19 Publishers' Complaint, para.35 (emphasis added) 20 Publishers Complaint, para.5. The Open Content Alliance (OCA) is collaboration amongst a number of corporations, non-profit groups and universities to digitise thousands of books and make them fully accessible via the internet. The U.K.'s National Archive is part of the alliance. The OCA index will be available via Yahoo! and from the OCA's web site although it will also be made available to other search engines. The OCA differs from Google Book Search as it will focus primarily on public domain works and will seek permission from publishers before including works still under copyright. See Katie Hafner, 'In Challenge to Google, Yahoo Will Scan Books' New York Times (3 October 2005); 'Global Consortium Forms Open Content Alliance to Bring Additional Content Online and Make it Searchable' OCA Press Release (3 October 2005) available at http://www.opencontentalliance.org/OCARelease.pdf (last visited 12 January 2006) 21 Publishers' Complaint para.19 22 Publishers' Complaint, para.31
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"We regret that this group chose to sue us over a program that will make millions of books more discoverable to the world - especially since any copyright holder can exclude their books from the program. Whats more, many of Google Prints chief beneficiaries will be authors whose backlist, out of print and lightly marketed new titles will be suggested to countless readers who wouldnt have found them otherwise."23
This response sets out to convince authors and the public at large that the Library Project is a good thing. The post compares the Library Project to an "electronic card catalogue" and predicts that the facility "can only expand the market for author's books."24 Ms. Wojcicki claims the limited content displayed from books under copyright is fully consistent with both the fair use doctrine under U.S. copyright law and the principles underlying copyright law itself."25 Following the filing of the publishers lawsuit, a further post on Googles corporate blog reiterated this position.26 3. Google Book Search and U.S. Copyright Law Google believes that its actions are permissible under the scheme of exceptions that form part of U.S. copyright law, specifically fair use. Before proceeding with an analysis of Google's case, it bears emphasising the specific steps that implicate the exclusive rights of copyright owners. There are two key stages: 1. Having received a copy of a book from a participating library, Google proceeds to copy the entire work by scanning it and storing it on its own servers.27 2. In response to queries by users, Google copies and then displays small segments (probably no more than 100 words in any particular instance) of the work via its web site.28 The
23 Susan Wojcicki, 'Google Print and the Author's Guild' (20 September 2005) at http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html (last visited 12 January 2006) 24 Ibid 25 Ibid 26 David Drummond, 'Why we believe in Google Print' (19 October 2005) at http://googleblog.blogspot.com/2005/10/why-we-believe-in-google-print.html (last visited 12 January 2006) 27 After scanning the book Google returns to the relevant library the original and an electronic copy. This presents interesting copyright issues of itself, but is ignored for the purpose of this article as it does not impact on the operation of the Library Project. 28 It can be argued that stage 2 actually comprise two discrete steps that implicate copyright: (1) the creation and display of a list of works that meet the search criteria; and (2) the subsequent display of extracts of a particular work selected by the user. It is unlikely, however, that a court would view these elements separately. Step 2, here,
display is in response to a specific request from a specific user. No segment is made generally available to the public.29 Stage 1 necessarily precedes stage 2. The authors and the publishers allege that each stage constitutes copyright infringement in its own right: stage 1 as it involves the unauthorised copying of an entire work; stage 2 because of the commercial character of the use.30 The real gripe the various plaintiffs have is that stage 1 copying occurs without permission. The most interesting issue, therefore, can be phrased more succinctly: is it an infringement to copy an entire work without authorisation as a preliminary stage to displaying only a tiny fraction of the contents of a work. This is the issue of intermediary copies. Intermediary copies are increasingly relevant. As digital networked technologies proliferate the multi-media world increasingly concerns itself with real life representations in place of abstractions. The rapidly increasing power of technology facilitates this and our increasing familiarity with virtual spaces encourages it. As we immerse ourselves in richer representational environments, the traditional contours of copyright doctrine may need to adjust. The physical act of copying - the core of copyright - is too common, too easy and, now, too important to stand as the barometer for illegality. Yet it remains our guiding principle. If the lawsuits against Google proceed, the outcome will have ramifications far beyond the world of books. There is little doubt that by its actions Google has implicated the exclusive rights of copyright owners. These rights include, in the case of literary works, the right to make and distribute copies of a work and the right to display a work publicly.31 Furthermore the argument that the copying is de minimis would almost certainly fail.32 Google's actions, therefore, can only be justified if they fall within one of the exceptions to copyright infringement. The "fair use" exception in U.S. copyright law "permits courts to avoid rigid application of the copyright statute when, on occasion it would
is really step 1 with padding. I examine step 2 only and would suggest that the analysis also applies to step 1. 29 Unless, of course, a number of users perform the same search query at the same time and choose to view the same work. 30 Author's Guild Complaint, paras.31 and 33; Publisher's Complaint, para.38 para.4 31 17 U.S.C. 106(1) and (5) 32 See Elisabeth Hanratty, 'Google Library: Beyond Fair Use?' (2005) Duke Law & Technology Review 0010, at 4-7 (reviewing case law)
stifle the very creativity which the law is designed to foster."33 When conducting a fair use assessment the courts consider four nonexclusive factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work.34 The fourth factor is considered the most important, but courts may also consider other factors because fair use is an "equitable rule of reason" to be applied in light of the overarching purpose of copyright law.35 Two cases to have considered the fair use defence in the online context are particularly useful when considering whether Googles use of works as part of the Library Project constitutes fair use. Kelly -v- Arriba Soft36 Arriba Soft developed a search engine that retrieved images rather than text. The engine crawled the internet searching for visual images that it captured, converted into low-resolution 'thumbnail' representations, catalogued and subsequently displayed in response to queries by users. Kelly, a photographer, objected to his photographs being copied in this way. Prima facie this was a clear case of copyright infringement, and the case turned on whether the defendant's actions were fair use. The commercial character of the use was held to not preclude a finding that the first fair use factor could weigh in favour of Arriba Soft.37. If the use of the work is particularly "transformative" then the commercial aspect becomes less important. The court noted that Arriba was not "trying to profit by selling Kelly's images" so the commercial aspect weighed only slightly against Arriba Soft.38 Furthermore, the transformative nature of the use was substantial. The thumbnail images served "an entirely different function" than the original images, as they were simply part of a functional indexing tool "unrelated to any aesthetic purpose."39 Even though Arriba Soft "added nothing" to the image itself, the functional distinction "improved access to information on the internet versus artistic
Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, at 1399 (9th Cir. 1997) 34 17 U.S.C. 107 35 Sony Corp. of America v. Universal City Studios, Inc., 464 (1984) U.S. 417, at 448 (hereinafter Sony) 36 Kelly v. Arriba Soft Corp. 336 F.3d 811 (9th Cir. 2003) (hereinafter Kelly) 37 Kelly, at 818 (citing Campbell v. Acuff-Rose Music, Inc. 510 (1994) U.S. 569, 579) 38 Ibid 39 Ibid
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expression" - was transformative because the public benefits from "enhancing information-gathering techniques on the internet."40 This transformation outweighed the commercial nature of the use, and the first factor weighed in Arriba Softs favour. The second fair use factor considers the nature of the work. Photographs like Kelly's were "generally creative in nature," so this factor leant slightly in favour of Kelly.41 As to the third factor, although Arriba Soft copied the entire image, this was necessary in light of the purpose of the use previously discussed.42 The public benefit identified under the first factor mitigated the fact that images were copied wholesale. Copying only part of the image would [make it] more difficult identify it, thereby reducing the usefulness of the visual search engine.43 This factor therefore was held to favour neither party. On the final factor, the court noted that Kelly used his photographs to attract visitors to his web site where he sold advertising space. The court also identified several potential markets for Kelly's works including his ability to license them to other web sites or to a stock photo database. However, the thumbnail representations displayed by Arriba Soft caused no harm to these existing or potential markets. In fact the opposite was true: "the search engine would guide users to Kelly's web site rather than away from it."44 Furthermore, the thumbnails would not serve as a market substitute to Kelly's images because resolution decreased markedly if they were enlarged. The fourth fair use factor, therefore, weighed in Arriba Soft's favour. With the score at 2 to 1 in favour of Arriba Soft the Ninth Circuit Court of Appeals found in favour of fair use. It is easy to latch on to Kelly as the case that gives the Library Project the green light. However, whilst Kelly is instructive, it is important to distinguish Arriba Soft's actions from Google's. In Kelly the defendant was merely indexing works already made available on the World Wide Web either by Mr Kelly himself or with his permission. The equivalent of stage 1 copying in Kelly, therefore, was far less controversial than Google's activities because it did not involve a
Kelly, at 818-820 Kelly, at 820 42 Kelly, at 820 (noting the extent of permissible copying varies with the purpose and character of the use) 43 Kelly, at 821 44 Ibid
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'medium shift' and was arguably subject to an express or implied licence.45 UMG Recordings v- MP3.com46 MP3.com launched MyMP3.com in January 2000. The service allowed subscribers to listen to music tracks at any place where they had an internet connection. MP3.com purchased thousands of music CDs for this purpose and copied the contents on to its servers. Prior to receiving a streamed copy of the music from MP3.com, subscribers were required to prove they owned a copy of the particular CD. This was done by either inserting a physical copy of the CD into the computer's CD-ROM drive where it was identified using MP3.coms Beam-it Service or by purchasing a copy of the CD from MP3.coms one of a number of online retailers. The service was not authorised by the record companies, a large number of whom brought an action against MP3.com. The District Court easily identified a presumptive case of infringement based on the transmission of unauthorised copies of copyrighted sound recordings.47 Therefore, as in Kelly, liability turned on whether the steps taken by MP3.com were fair use. As to the first fair use factor the purpose and character of the use again, like in Kelly, the court identified a commercial advertising-based business model, but here, unlike in Kelly, a transformative element was lacking. MP3.com argued that space shifting of the sort enabled by MyMP3.com satisfied the transformative threshold. The court disagreed, noting that the unauthorized copies are being retransmitted in another medium an insufficient basis for any legitimate claim of transformation.48 The repackaging of the content added no new aesthetics, new insights and understandings despite being innovative, so the first factor weighed against MP3.com.49 The second factor the nature of the works also weighed in favour of the record companies. [C]reative recordings being close to the core of intended copyright protection as distinct from factual or descriptive works.50
On the question of implied licences in the internet context under U.K. law see Simon Stokes, Digital Copyright: Law and Practice (Butterworths: 2002), 7.30-7.31 and 7.817.83 46 UMG Recordings, Inc. v. MP3.com, Inc. 92 F. Supp. 2d 349 (S.D.N.Y. 2000) (hereinafter MP3.com) 47 MP3.com, at 350 48 MP3.com, at 351 49 Ibid 50 Ibid (citing Campbell v. Acuff-Rose Music, Inc. 510 (1994) U.S. 569, 586)
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The third factor the amount of the work taken was a trivial issue. MP3.com did not dispute that it had copied and transmitted the whole of the works in question. MP3.com had argued, under the fourth fair use factor, that the record companies had failed to demonstrate that they were prepared to license an analogous service and that, in any event, the service would enhance CD sales. The court was not persuaded, concluding:
Any allegedly positive impact of defendants activities on plaintiffs prior market in no way frees defendant to usurp a further market that directly derives from reproduction of the plaintiffs copyrighted works. This would be so even if the copyright holder had not yet entered the new market in issue, for a copyright holders exclusive rights include the right, within broad limits, to curb the development of such a derivative market by refusing to license a copyrighted work or by doing so only on terms the copyright owner finds acceptable.51
Finally, MP3.com suggested that clear consumer demand for the service should lean in favour of fair use. The court was unconvinced, describing such a finding as indefensible.52 Statutory damages amounting to tens of millions of dollars were awarded to the record companies and the MyMP3.com service was discontinued. MP3.com itself was acquired by Vivendi Universal in 2001. Google Book Search: Arriba Soft or MP3.com? What follows is a fair use analysis of the Library Project with a "positive spin". The purpose of this section is simply to emphasise that Google has an arguable case under U.S. copyright law that its use of books is lawful and, just as importantly, its opt-out policy unnecessary. This analysis, for example, does not consider procedural issues or the divergence in approach adopted by different courts in the U.S., both of which may be influential in determining the outcome of the cases.53 Recall that Google undertakes two steps that implicate copyright when making books available as part of the Library Project. Stage 1
MP3.com, at 352 (internal citations omitted) Ibid 53 See, e.g., Siva Vaidhyanathan, 'A Risky Gamble with Google' 52(15) The Chronicle of Higher Education (2 December 2005), B7 (remarking that: "It's no coincidence that the authors and publishers filed their suits against Google in the Southern District of New York, knowing that there is a general suspicion of newfangled views of copyright on the East Coast.")
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involves the creation of digitised copy of the entire work; stage 2 provides users with snippets of the work in response to specified search queries. It is worthwhile considering each of these stages against the fair use standard. Purpose of the use Irrespective of the use made by the end-user, Googles use of the works is commercial in nature.54 Google as a whole depends on advertising revenue which it earns when a user clicks on a contextually targeted advert on its web pages. In the case of Google Book Search, however, this model is not exploitative of the works in question. Adverts are included on the initial results page, but when a user selects a link to a work provided under the terms of the Library Project the page displayed is ad-free. Furthermore, Google does not earn revenue if a user subsequently purchases the work by following the Buy this book links. The use of an individual work, echoing the more incidental and less exploitative commercial use in Kelly, is indirectly commercial even though the overarching business model is aimed at generating advertising revenue. The use can also be categorised as transformative: not in the wellunderstood sense of "altering the [original work] with new expression, meaning or message",55 but in the preliminary sense - explicitly recognised in Kelly - of improving access to information.56 The books are not merely being retransmitted in another medium like the sound recordings in MP3.com (although this is exactly what is happening with regards the public domain works). For example, Googles index will in no way supplant the users experience of reading a novel. The tiny proportion of text made available offers no indication of the novels structure and narrative flow and will, at most, provide only glimmers of its characterisation and tone. The Library Project aspect of Google Book Search is purely functional in exactly the same way that Arriba Softs use of Mr Kellys photographs was. It does not recreate the artistic experience of consuming a work.57 Furthermore, Google is adding search functionality to the works, something that is not available in the printed version. This is a
54 The commercial nature of a copyists use as distinct from the non-commercial (e.g. educational) use by the ultimate user of the copy was highlighted in Basic Books Inc. v. Kinko's Graphics Corp. 758 F. Supp. 1522 (S. D. N.Y., 28 March 1991), 1531-32 55 Campbell v. Acuff-Rose Music 510 (1994) U.S. 569, 579 56 See also Lloyd L. Weinreb, 'Fair's Fair: A Comment on the Fair Use Doctrine' 103 (1990) Harvard Law Review 1137 (Commenting, before Kelly and the World Wide Web, that "[a] use may serve an important, socially useful purpose without being transformative, simply by making the copied material available", at 1143) 57 The court in Kelly recognised that Arriba Softs thumbnails could be used for illustrative or aesthetic purposes if they were enlarged, but concluded that this was unlikely given the resulting loss of clarity, Kelly, 336 F.3d 811 at 819. No comparable risk exists with the Library Project.
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function that fully serves the underlying purposes of copyright law.58 The use is transformative if we understand that expression in the broadest sense and this factor should favour Google at stage 1 and stage 2. Nature of the work Books, protected by U.S. statute since 1790, are undoubtedly close to the core of intended protection, and, despite the fact that a large number of the works made available are factual and descriptive (e.g. reference works), many of the works, including those of the authors named in the Authors Guild law suit, are highly creative. In Basic Books v. Kinko, the District Court found this factor weighed in favour of the defendant (the copyist) because use of factual works is better "tolerated" by copyright law.59 This could assist Google in a book-bybook assessment but not when considering the Library Project as a whole. Google has offered no indication that it is prepared to treat factual and non-factual works differently. The second factor, therefore, is likely to weigh in favour of the authors and publishers. In Kelly this factor only weighed slightly in favour of the Mr Kelly. Photographs, however, have always been considered to lie on the fringes of copyright protection, and it is likely that a court, like the court in MP3.com, would judge this factor clearly in favour of the plaintiffs. Amount of the work used There are two important considerations regarding the third factor. Firstly, stage 1 clearly implicates more of the work than stage 2. The proportion of the work copied and then displayed during the second stage is tiny. Judging this portion of the work against the work as a whole will produce different results for different books.60 On average, however, this factor is likely to favour Google in the stage 2 assessment. The second consideration is critically important in the stage 1 assessment, where the fact that the entire work is copied would appear to strongly favour the plaintiffs. In Kelly the court linked the first and third fair use factors. Copying the entire photograph (factor 3) was necessary if Arriba Soft was to achieve its purpose of producing a functionally useful image catalogue (factor 1). In theory the same principle applies to the Library Project though to a lesser extent. Imagine, for example, that Google only scanned and made searchable the contents page, introductory chapter and index of
See Hanratty, supra n__, at 20 Basic Books Inc. v. Kinko's Graphics Corp. 758 F. Supp. 1522 (S.D. N.Y., 28 March 1991), 1532-33 60 Compare, for example the Oxford English Dictionary and Don Quixote. In both instances the amount of the work displayed is tiny in quantitative terms, but qualitatively, especially if measured from the perspective of the end-user, the portion of the dictionary displayed is substantial.
58 59
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the books. The result would undoubtedly be useful and go towards Googles intended purpose. It would, however, be less useful than what Google proposes. Copying the complete work amplifies the purpose in this instance but is not determinative of it. The court may view this as a relevant consideration and judge this factor only slightly in favour of the plaintiffs or even in favour of neither party. Market impact As noted above the fourth fair use factor is described as the most important factor in a fair use analysis.61 It is difficult to imagine that the Library Project will in any way harm the existing market for books. It may lead to more users purchasing obscure and hard to find titles, possibly at the expense of more popular works, but the overall market for the sale of physical copies of books is unlikely to diminish.62 An interesting precedent is Amazons Search Inside feature that allows Amazon customers to perform full text searches on and view pages of certain books. Amazons founder Jeff Bezos has remarked that sales of searchable titles have increased by 9% relative to non-searchable titles, and sales of searchable reference works have risen even further.63 However, as the MP3.com court made clear, the positive impact on prior markets does not justify the defendant usurping a potential market.64 In MP3.com the prior market was the market for CDs; the future market the market for space shifted transmissions of the underlying sound recordings. At the moment, however, it is harder to ascertain what future market could be usurped by the Library Project. It certainly cannot be the market for eBook versions of the work. Only tiny portions of the work are provided in electronic format. The plaintiffs could argue that the service directs users away from the publishers own website on to the sites of other retailers. But the economic impact of this (if proven) would be small as overall sales and author/publisher royalties would likely increase. The most plausible arguments relating to the fourth factor are that the stage 1 copies could become freely available by leaking on to the
See, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 (1985) U.S. 539, 566 ("[the] last factor is undoubtedly the single most important element of fair use") 62 This can be classed as a "long tail" phenomenon. See Chris Anderson, 'The Long Tail' Wired (October 2004), 170. Also see Chris Anderson's blog where he explores the "long-tail" phenomenon in greater detail, available at http://longtail.typepad.com/the_long_tail/ (last visited 12 January 2006) 63 Chris Anderson, The Zen of Jeff Bezos Wired (January 2005), 166 64 See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) ('to negate fair use one need only show that if the challenged use "should become widespread, it would adversely affect the potential market for the copyrighted work,"' at 568 (emphasis original), citing Sony, at 451)
61
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internet,65 and the stage 2 displays hinder authors' (and publishers') ability to license their works to other search engines for similar uses. Google can manage the Napsterisation threat inherent in stage 1 by imposing adequate security controls and would, in any event, remain subject to other causes of action if the threat materialised. The future licensing argument is more complex. Recall that the publishers claim that licensing opportunities of this sort are an important source of "ancillary revenue" from less popular titles.66 This argument, whilst initially appealing, is undermined by a number of other factors. First, irrespective of these ancillary opportunities, the use, as in Kelly, is likely to have a positive impact on the primary market for physical or electronic copies of the works. The net market effect - primary market gains minus ancillary market losses - may well be positive. Secondly, the existence of the Publisher Program, which Google presumably favours, provides a mechanism for publishers to realise the benefits of these ancillary opportunities if they choose to. Thirdly and most importantly, the vast majority of published books - including those still under copyright - are now out of print.67 Ascertaining the copyright and ownership status of these works can be a near impossible task.68 Together these factors may convince a judge that market harm is fanciful and the opt-out method proposed by Google appropriate. This factor, whilst complex, should be construed in Googles favour at stage 1 and Google or possibly neither party at stage 2. From Googles perspective, the preceding fair use analysis is summarised in the table below: Stage 1 Purpose of the Google use. Nature of the Plaintiffs work. Stage 2 Google
Plaintiffs
65 See Brad Stone, Googles Book Battle Newsweek (31 October 2005) 58 (noting that during discussions between Google and the AAP publishers suggested storing digital copies of copyrighted books on their servers instead of Googles) 66 Publishers' Complaint para.19 67 See Hannibal Travis, 'Building Universal Digital Libraries: An Agenda for Copyright Reform' (Working Paper, 25 August 2005) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=793585 (last visited 12 January 2006), 42-43 68 Ibid, at 46-52. See also Stone, supra n__ (The idea behind making an index that is comprehensive is defeated if you have to go door to door to ask permission only from the people whose rights you can identify, quoting Google senior counsel Alex Macgillivray)
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Amount work used.
of Plaintiffs/ Neither Party Google
Google
Market impact.
Neither Party/Google
Table 1: Library Project positive-spin fair use assessment
Given the importance of the first and fourth fair use factors as evidenced in Kelly and MP3.com the courts should be able to find that stage 1 copying and stage 2 copying and displaying each constitute fair use.69 Permission need not be obtained from copyright owners for the intended use, and the opt-out policy, though sensible, is unnecessary.70 4. Google Book Search and U.K. Copyright Law If the lawsuits against Google proceed to trial they will be decided on the basis of the U.S. legal principles discussed above. It is interesting, however, to consider the legality of the Library Project under U.K. copyright law. It is, after all, possible that a similar service could fall within the jurisdiction of the U.K. courts. Recall that the Bodleian Library at Oxford University is one of libraries participating in Google Book Search. U.K. copyright would be implicated if, for example, the physical scanning of books under copyright takes place in the U.K., or the resulting copies are stored on servers located in the U.K. There is no need to dwell on these technicalities at this stage, however, as the Bodleian Library will only be offering Google access to public domain works - meaning "principally, books published before 1920".71 Nevertheless an examination of the legality of the stage 1 and stage 2 copying under U.K. copyright law is a worthwhile exercise. Rather than the open-ended, flexible and potentially adaptive fair use exception under U.S. law, the U.K. has chosen to enact a large number of detailed and specific exceptions often designed with specific
An assessment at the level of each individual work provided by the libraries may lead to different results for different works. The preceding analysis, however, merely attempts to show that Google has a good arguable case that its use is fair when examining the project as a whole,. 70 Although note that if the court regards the opt-out policy as important when considering the fourth factor (market impact), the existence of the policy becomes a legal consideration. 71 See 'Oxford-Google Digitisation Agreement' available via http://www.bodley.ox.ac.uk/google/ (last visited 12 January 2006)
69
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institutions and purposes in mind.72 The fair dealing provisions are the most expansive of these exceptions. The question of fairness in a fair dealing assessment considers many of the factors that U.S. courts grapple with under fair use: the amount of the work taken and the potential market harm caused by the contested use etc.73 However, these factors are only relevant if the purpose of the use falls within articulated parameters. In effect, under U.K. law a fair use assessment is separated into two independent components. The first component the dealing is analogous to the first fair use factor under U.S. law (the purpose and character of the use) but, critically, with limited scope for judicial activism, let alone common-sense extensions of doctrine in response to shifts in the underlying technological environment. Only when this first hurdle is cleared is the second component fairness considered. In Kelly the public benefit in the transformation was the critical factor in finding in Arriba Softs favour. I have suggested that the Library Project should be similarly viewed in the U.S. courts. Unfortunately for Google, there appears to be no comparable escape route under U.K. law. A U.K. court assessing the Library Project would ask the following questions: 1. Is there a prima facie case of infringement, based on, inter alia, whether a substantial portion of the work has been reproduced and/or communicated to the public?74 2. If so, is the use for non-commercial research, private study, criticism, review, or reporting current events?75 3. If so, is the use 'fair'?
See, e.g., CDPA section 34 (performing, playing or showing work in course of activities of educational establishment); section 70(1) (recording for purposes of time shifting) 73 See, e.g., Hubbard v. Vosper [1972] 2 Q.B. 84, per Lord Denning at 94 (describing how use for a "rival purpose" and the taking of "long extracts" points to a finding of unfairness); Ashdown v. Telegraph Group Ltd [2002] Ch. 149, per Lord Philips at 174 (publication of extracts from the Claimants memoirs "destroyed a part of the value of the memoirs which it had been Mr Ashdown's intention to sell"). 74 CDPA 1988, sections 16(3), 17 and 20 75 The fair dealing exceptions are by no means the only 'permitted acts' under U.K. copyright law. A number of other specific exceptions could assist Google in certain circumstances. Generally, however, they (i) would not apply to the Library Project as a whole or (ii) would require an ambitious stretch of statutory language to be applicable in the first instance. See, e.g., CDPA 1988 section 29A (temporary copies that are transient or incidental to a lawful use or a network transmission and that have no independent economic significance), section 32(1) (things done for the purposes of instruction or examination), section 59(2) (communication to the public of a reading or recital of a work); section 60 (abstracts of scientific or technical articles). Section 29A is discussed in greater detail at section __ below.
72
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Regarding the first question, there appears to be no mechanism in the "substantial part" analysis under U.K. law to distinguish or ignore the stage 1 copying. It is important to remember that the defendant in this hypothetical case is Google, and the question is whether by its actions it has copied all or a substantial part of the work. This is a factual not a purposive enquiry that looks at the claimant's work not the defendant's use.76 In the overall scheme of the Library Project, Google has directly copied the entire work. On any metric of measurement - quantitative or qualitative - the test is met and a rebuttable presumption of infringement arises. Even if we consider stage 2 copying in isolation, there is authority for the proposition that small but regular helpings of a work constitute a substantial part even though each individual helping does not.77 By regularly extracting insubstantial elements of the same work - irrespective of whether the ultimate user actually views those elements - the stage 2 reproduction or communication to the public may itself be classed as substantial. The substantiality threshold would be met, certainly with regards stage 1 copying and potentially with regards stage 2 copying. The analysis, therefore, must consider whether the use is permitted. Fair dealing for the purposes of "non-commercial research or private study" or "criticism, review or reporting current events" is not an infringement.78 The CDPA 1988 explicitly provides that copies may be made by someone other than the end-user under the research or private study exception. No equivalent provision is provided under the second strand of fair dealing exceptions. It would therefore seem that Google itself is precluded from relying on this latter strand. Under the research or private study exception copying may be undertaken by someone other than the researcher or student only if that person does not know or have reason to believe that it will result in copies of substantially the same material being provided at substantially the same time and for substantially the same purpose.79 Google probably satisfies these criteria because the ultimate users of Google Book Search use it for a wide variety of different purposes.
Designers Guild Ltd v. Russell Williams (Textiles) Ltd [2001] 1 W.L.R. 2416, per Lord Millett at 2426 ("while the copied features must be a substantial part of the copyright work, they need not form a substantial part of the defendant's work. Thus the overall appearance of the defendant's work may be very different from the copyright work. But it does not follow that the defendant's work does not infringe the plaintiff's copyright", internal citation omitted). 77 Football League Ltd v. Littlewoods Pools Ltd [1959] Ch.637, at 657-658. This proposition, made at a time when "substantiality" was not an explicit provision of U.K. law, was subsequently approved in the context of the CDPA 1988 by Gibson LJ in Newspaper Licensing Agency Ltd v. Marks & Spencer plc [2001] Ch.257, at 269 78 CDPA 1998, sections 29-30 79 CDPA 1998, section 29(3)(b)
76
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For the same reason, however, Google is unlikely to satisfy the other terms of this exception. The terms 'non-commercial purpose', 'research' and 'private study' are given their ordinary dictionary meaning, and clearly Google Book Search can be used for commercial purposes.80 The service does not distinguish between commercial and non-commercial uses. It would, for example, be easy for an entity to use Google Book Search to compile a database of bibliographic information for commercial or non-commercial use or to use the search tool when preparing a business report. Similarly, despite the fact that the wording of the private study exception is not limited to non-commercial private study, section 178 of the CDPA 1988 states that "'private study' does not include any study which is directly or indirectly for a commercial purpose." As to the purposes themselves, Google Book Search is used for informational purposes preliminary to a hugely varied number of ultimate purposes. Some of these uses fall squarely within the categories of fair dealing discussed here, others are borderline cases and many more fall outside. 'Informational use' in this manner, however valuable, does not fit within the existing scheme of the fair dealing exceptions that form part of U.K. copyright law.81 Having answering 'no' to the second question above, we need not consider the question of 'fairness'. However, two further observations should be made. Firstly, recall that U.K. courts consider many of the same factors as their U.S. counterparts. In particular, whether the use interferes with existing or future markets for the work is critical. U.K. courts may be sceptical of claims that the exploitation of the work is threatened by the existence of the Library Project. Secondly, if stage 2 copying is deemed 'fair', a U.K. court may hold stage 1 copying fair by default. In Pro Sieben v. Carlton,82 for example, the Court of Appeal considered whether the unauthorised use of a 30 second segment of a televised interview in a subsequent current affairs programme was fair use. To facilitate the use of the 30 second clip the defendant had copied and stored the entire interview. The Court of Appeal held that the use of the clip fell within the terms of fair dealing for the purposes of criticism or review and reporting current events (the detail need not concern us here), and further that the fair dealing defences also covered the copying of the entire interview as this was done "for the
80 Directive 2001/29/EC, [2001] OJ L 167/10 (hereinafter, 'Information Society Directive'), recital 42 (provides that the non-commercial nature of research activities should be judged according to the "activity as such" independent of the structure or funding of the organisation in question) 81 See also Paul Ganley, 'Digital Copyright and the New Creative Dynamics' 12 International Journal of Law and Information Technology (2004) 282, 312-316 82 Pro Sieben Media AG v. Carlton UK Television Ltd [1999] 1 W.L.R. 605
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same ultimate purposes as those for which the [appellant's] programme was made and broadcast."83 Under existing U.K. law principles, Google has two problems. Firstly, the intermediary copying of the entire work is only relevant at the "fair dealing" stage of the analysis. Secondly, none of the fair dealing categories fit: using a searchable electronic index of works for 'informational' purposes is simply not an exempted category of use. If the intermediary copying performed during stage 1 was ignored and only stage 2 copying considered as part of the substantiality assessment, it could be argued that no infringement has taken place. Hence a "permitted use" would not need to be found i.e. solving the first problem could render the second problem redundant. But intermediary copying cannot be ignored at this stage, where courts consider a qualitative and quantitative question of fact, only at the later - fair dealing - stage where the court can disregard the stage 1 copying if it accords with 'ultimate purpose' of the (fair) use.84 Under U.K. law then, it is suggested that authors and publishers would have a very good prospect of winning a copyright infringement claim. 5. Re-conceptualising copyright exceptions in the digital age People didnt learn to write with the advent of the world wide web. The web may have unleashed an army of citizen reporters, bloggers and fan-fiction authors, but the wealth of information that is fixed only in paper form on dusty shelves along poorly lit corridors is important. The dead tree distribution method will feel quaint in thirty years, but we must not forget the teachings of trees. Google would like to help us remember. This author unashamedly believes that Google's Library Project is an idea worth pursuing. It will be a boon for authors and users, will pose little if any harm to publishers, and is precisely the sort of scheme that copyright law should permit, even encourage. The reason it fails to do so, at least if the preceding analysis of U.K. copyright law is correct, rests with copyright laws continued infatuation with the
83 84
Ibid at 619-620 See Copinger and Skone James on Copyright (15th ed. London: Sweet & Maxwell 2005) 9-19 (hereinafter Copinger) ("[T]he question of what amounted to "fair dealing" frequently arose under the law prior to 1911 in determining whether the use which had been made of the plaintiff's work was sufficient to constitute infringement. As such, this question was often not distinguished from the issue of whether a substantial part of the plaintiff's work had been taken. Since the 1911 Act, the two issues have been quite distinct. It is only when the court has determined that a substantial part has been taken that any question of fair dealing arises")
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notion of "the copy". Pre-internet wholesale copies were the exception not the norm. Wholesale copying was cumbersome and timeconsuming. And wholesale copyists were probably up to no good. The copy (or a substantial part thereof) was just about the appropriate metric.85 Post-internet, copying is unavoidable. This copying can produce substantial harm, but often this copying produces substantial benefits without undermining copyrights central incentive structure: by facilitating the dissemination of knowledge; by flattening barriers for criticism, comment and debate; and by opening access to the tools of democracy.86 The second half of this article argues that if we value an informed populace and the empowerment of citizen participation, we should be sceptical of laws that make innovations such as the Library Project presumptively illegal. This scepticism is grounded on two recent theories that provide technical and economic support for the idea that innovations such as Google Book Search should fall within the scope of copyright's exceptions. These theories - labelled 'generativity' and infrastructure - suggest a need for a new exception within U.K. copyright doctrine. This exception, discussed in the final part of this article and labelled intermediary or informational use, is designed to recognise the peculiar benefits that certain types of copying entails. This exception is not a pirates charter or a free-riders free pass. Rather, it is simply a recognition that the forum in which many mutually beneficial informational interactions occur is shifting from one of abstraction to one of immersion. Generativity The first theory discussed is a descriptive one. In a recent essay, Jonathan Zittrain undertakes to explain how technologies can be classified by reference to the principle of generativity.87 According to Zittrain, degrees of generativity depend on a number of factors: leverage, adaptability, ease of mastery, and accessibility. Leverage refers to the extent to which objects enable valuable accomplishments that previously would have been either impossible or not worth the effort to undertake.88 Adaptability concerns the degree to which a given technology allows different additional kinds of uses by broad audiences and implicating multiple areas of
See, e.g., Jessica Litman, Digital Copyright (Prometheus Books: 2001), 176-178 Ganley, supra n__, at 302-303 87 Jonathan Zittrain, The Future of the Internet And How to Save It (Working Paper, February 2005) available at http://cyber.law.harvard.edu/zittrain/netfuture.pdf (last visited 12 January 2006) (hereinafter Zittrain, Internet Future) 88 Zittrain, Internet Future at 7
85 86
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human endeavour.89 Ease of mastery depends on how easy it is audiences to adopt and adapt a given innovation and how much skill and talent is necessary to make use of its leverage for tasks they care about.90 Finally, accessibility relates to the absence of barriers economic, technical or legal that prevent or hinder a person from using a given technology. A technology that is highly leveraged, highly adaptable, easy to master and broadly accessible is highly generative. In this sense writing is highly generative, brain surgery is not. Zittrain uses these factors to explain how the development of the personal computer and the internet and the melding of the two has created a 'generative grid' - a "still-emerging entity that pushes the boundaries of leverage, adaptability, and accessibility for information technology."91 Zittrain regards the generativity of this construct as the defining point in the emergence of digital networked technologies; its potential is hard to overstate. The grid serves as a blank canvas for technical audiences, creative/expressive audiences and groups and combinations of both. Zittrain explains how "generativity solicits invention", first in technically-capable groups but then "translated to a number of platforms for use by artistically-capable groups."92 Zittrain offers HTML, "blogware", Wikis, and Creative Commons object tags as examples of IT products initially developed by technically proficient groups that now create huge benefits and opportunities for creative communities. Charting the evolution of the grid, Zittrain believes the contribution made by commercial entities in the 1990s "greatly increased the internet's generativity because it opened development of networked technologies to a broad, commerciallydriven audience that individual companies running proprietary services did not think to invite."93 Zittrain further explains how technical and artistic creativity fostered by the grid are not simple responses to market demand for particular uses or functions. Many new uses are unpredictable, unforeseen, and unquantifiable. These benefits "are no less powerful for being diffuse, nor for being captured largely as intangible potential - opportunity for future invention rather than actualized."94 Zittrains primary concern is that our regulatory response to the perceived threat posed by the generative grid - defamation, copyright infringement, SPAM, viruses and worms etc - will ultimately undermine the inchoate and abstract benefits that
Zittrain, Internet Future at 8 Ibid 91 Zittrain, Internet Future at 29 92 Zittrain, Internet Future at 30-32 93 Zittrain, Internet Future at 23 94 Zittrain, Internet Future at 41
89 90
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generativity helps produce. He emphasises that technical and artistic users of the grid are important stakeholders in the system and concludes by recommending that future regulation should be mindful of a "rule of thumb that asks that modifications to the PC/Internet grid be made where they will do the least harm to its generative possibilities."95 So what can generativity teach us about innovations such as Google Book Search? Two points are worth emphasising. First, notice that tools which promote access to information resources are highly generative. Libraries, for example, are generative institutions. Much of copyright law is designed to increase accessibility to these institutions by deliberately reducing the legal barriers copyright that thwart this generative potential.96 By focussing on accessibility, the generative potential of collections of information particularly in terms of leverage and adaptability is preserved for the mutual benefit of innovators, artists, hobbyists and the merely curious. Second, transposing the generative benefits of access to information to an online forum is prejudiced by copyright laws existing structure. Zittrain is concerned that regulatory changes should do the least harm to generative possibilities. When these possibilities involve basic information, however, a distinctly harmful regulatory environment is already in place. Recall Zittrains description of the generative grid as future oriented. Second-order uses of the grid, whilst unpredictable, are accommodated. This unpredictability is a feature not a bug. There are no inherent biases in the system and no particular form of creative output is favoured over any other.97 The innovation we have witnessed in the past decade blogs, Wikipedia, Free/Open Source
95 Zittrain, Internet Future at 107. The U.S. Supreme Court's recent judgment in MGM v. Grokster, 125 (2005) S. Ct. 2764, can be viewed from the perspective of doing the "least harm" to generativity. In this case the Supreme Court chose not to revise the capable of substantial non-infringing use standard articulated in Sony that has shielded many providers of new technologies from secondary copyright infringement lawsuits and chose instead to focus on the intention of individual actors by establishing an active inducement strand to secondary liability. See Paul Ganley, Surviving Grokster: Innovation and the Future of Peer-to-Peer 28 European Intellectual Property Review (2006) 15 96 CDPA 1988 sections 37-44 97 This idea is closely related to the end-to-end principle of network design which stipulates that intelligence should be located at the ends of a network, whereas machines in the middle should perform simple functions that can be utilised by many different applications. See Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (Random House: 2001), 34-37
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Software, distributed computing, search technology, P2P software to name a few,98 and the wealth this has generated - are all consequences of amateur experimentation on top of the grid as distinct from the strait-jacketed, monetised and licensed structures of traditional markets and firms.99 U.K. copyright law, however, is unable to countenance unpredictability of this sort. The modus operandi of digital tools that promote access to information invariably implicates copyright law. These tools are presumptively illegal unless they fall within one of a number of specifically-articulated and narrowly-crafted exceptions. But, critically, generative tools tend not to fall anywhere. Or, looking at it differently, they potentially fall everywhere. Users will exploit the innovation in ways that may or may not be exempt under copyright law, yet the underlying innovation is impossible to categorise in any meaningful way. Innovation, understood by reference to generativity, is a process, not a result. How we undertake this process is a much under-explored area of copyright scholarship. As Julie Cohen has recently written:
In most fair use cases, the identity of the user is known, the use has already been made, and the only question is whether or not it passes muster. Perhaps for these reasons, courts and commentators evaluating fair use cases tend to talk about uses as faits accomplis. Although the fair use analysis requires nods to abstract and general qualities such as commerciality, the question of lawfulness is rarely related in any systematic way to the process that led to the use.100
This comment regarding fair use is equally applicable to fair dealing, probably more so. If we view innovations such as Google Book Search through the lens of generativity, we can neatly categorise them as process tools. Tools that provide broader access to information the VCR, P2P software etc - are regularly examined under theories of secondary liability. Here, Google would almost certainly be safe. It is neither "authorising" infringement (its not really authorising anything
98 For a description of these innovations and a less formalised account of the lessons copyright law can learn from them see Paul Ganley, The Internet, Creativity and Copyright Incentives 10 Journal of Intellectual Property Rights (2005) 188. 99 See, e.g., Yochai Benkler, Coases Penguin, or Linux and the Nature of the Firm' 112 Yale Law Journal (2002) 369; Dan Hunter and F. Gregory Lastowka, 'Amateur to Amateur' 46 William & Mary Law Review (2004) 951 100 Julie E. Cohen, The Place of the User in Copyright Law 74 Fordham Law Review (2005) 347, 362. For a fascinating discussion of some of the issues raised by Cohen in her paper see the 'MobBlog' discussion at Picker MobBlog available at (last http://picker.typepad.com/picker_mobblog/cohenend_users/index.html visited 12 January 2006).
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in particular), nor "inciting" infringement.101 Google's chutzpah may displease a judge, but that is not enough for a finding of secondary liability. However, when a process tool is judged against standards of direct infringement, as will increasingly be the case, U.K. law is only able to dissect the discrete steps undertaken by the innovator in an isolated manner. Full copies? Case closed. The process this facilitates doesnt get a look in. Generativity is no defence. Infrastructure The question of how to ensure that the producers of information products continue to produce dominates economic thinking around copyright law. These supply-side considerations are well articulated in copyright literature. Producing original expression typically involves large fixed costs (sometimes referred to as first copy costs) whereas producing additional copies of that expression usually involves low marginal-costs. The original producer must account for both sorts of cost when pricing information goods. Second-comers, however, need only recover the marginal-costs of producing copies and can undercut the prices charged by the original producer. The inevitable result, so the story goes, is that original producers are dissuaded from investing in information production and society is worse off. Copyright law is designed to overcome these problems by granting the original producer an exclusive property right which he can use to prevent second-comers (or "free-riders" or "pirates"102) from appropriating the fruits of his upfront investment.103 Many scholars believe that copyright's overriding goals will be best met by ensuring that wherever possible the level of incentive provided to original producers is enhanced.104 These scholars would undoubtedly argue that rights holders should have complete autonomy to licence their works for inclusion in the Library Project on their own terms or not at all. Googles opt-out policy is a usurpation of this autonomy and should not be countenanced by copyright law. Curiously the demand-side considerations affecting this analysis have remained largely unexplored. However, in an important recent article
CBS Songs Ltd v. Amstrad Consumer Electronics Plc [1988] 2 All E.R. 484 See Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin: 2004), 53-61 (discussing the term piracy with reference to the history of the content industries) 103 William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Harvard University Press: 2003), 37-41; Michael A. Einhorn, Media, Technology and Copyright: Integrating Law and Economics (Edward Elgar: 2004), 1-3 104 See, e.g., Paul Goldstein, Copyrights Highway: From Gutenberg to the Celestial Jukebox (Revised ed. Stanford University Press: 2003), 187-216 (concluding that the best prescription for connecting authors to their audiences is to extend rights into every corner where consumers derive value from literary and artistic works, at 216)
101 102
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Brett Frischmann develops an 'economic theory of infrastructure' that sheds valuable light on this aspect of copyright policy.105 Frischmann argues that alongside traditional forms of infrastructure - roads, communication networks, government systems etc. - there are important "non-traditional" forms of infrastructure where providing exclusive property rights may be a sub-optimal economic response. Frischmann includes environmental resources, information resources and internet resources within this second type of infrastructure.106 Frischmann's article is concerned with developing an understanding of "the relationship between infrastructure and various downstream activities" and how "infrastructure resources generate value for society".107 Frischmann's is keen to understand the demand-side issues that a particular subset of resources invoke and asks "how value is created and realised by individuals who obtain access to infrastructure resources."108 Frischmann defines infrastructure as resources that satisfy the following demand-side criteria:
"(1) The resource may be consumed nonrivalrously; (2) Social demand for the resource is driven primarily by downstream productive activity that requires the resource as an input; and (3) The resource may be used as an input into a wide range of goods and services, including private goods, public goods, and nonmarket goods".109
Basic information satisfies all three criteria. Information is nonrivalrous, meaning that my consumption of a particular piece of information in no way detracts from your ability to consume the same. Basic information also serves as an input into a wide range of secondary activities. Consumption of basic information of the sort provided by Google under the Library Project is not consumption for consumption's sake; it is consumption that opens avenues for secondary uses of the information such as comparative analysis, purchase and consumption of the constituent works, and use of those works for secondary purposes such as teaching and research. Finally, these secondary uses include the production of a vast variety of secondary resources, including those which are public or nonmarket in character. Such resources produce diffuse benefits for
Brett Frischmann, 'An Economic Theory of Infrastructure and Commons Management' 89 Minnesota Law Review (2005) 917 (hereinafter 'Frischmann, Infrastructure') 106 Frischmann, Infrastructure at 927-928 107 Frischmann, Infrastructure at 929 108 Frischmann, Infrastructure at 939 109 Frischmann, Infrastructure at 956
105
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society at large through indirect consumption (e.g. x sharing with y what x learnt through direct consumption) or via improvement in "societal conditions" at large (e.g. heightened public debate through the wider availability of ideas and opinion). Economists call these benefits positive externalities. Frischmann calls infrastructures that generate substantial positive externalities "public and social infrastructure".110 Frischmann then explains how relying on market mechanisms to value public and social infrastructures causes problems because infrastructure users fail to either fully measure or fully appropriate the benefits - the positive externalities - that use of the infrastructure creates. This is particularly the case for infrastructures used to produce public and non-market goods. Managing these resources in an openly accessible manner may, in turn, be desirable when doing so takes advantage of non-rivalry and facilitates these types of downstream activities.111 As Frischmann concludes:
The social costs of restricting access to public or social infrastructure can be significant and yet these costs evade observation or consideration within conventional economic analysis. Initially, we may analyze the issue as one of high transaction costs and imperfect information. Yet, even with perfect information and low or no transaction costs with respect to input suppliers and input buyers, input buyers would still not accurately represent social demand because it is the benefits generated by the relevant outputs that escape observation and appropriation.112
Frischmann is interested in the conditions under which access to public and social infrastructures should be widely available. Whilst this is a critically important question, it is one step removed from our current discussion: access to Google Book Search is not a problem because Google Book Search is open to all. Frischmanns analysis proceeds on the basis of a two party conundrum represented as follows: Input Suppliers Input Buyers If, however, we view Google Book Search as infrastructure, there are three relevant interests, represented as follows: Input Suppliers Input Aggregator Input Buyers Or more specifically:
Frischmann, Infrastructure at 964-967 Frischmann, Infrastructure at 974 112 Frischmann, Infrastructure at 976
110 111
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Publishers/Authors Google Users The issue we should consider is whether the valuation problems inherent in market mechanisms specifically licensing - hold true when an input aggregator is involved, or whether an open access regime predicated on fair use or fair dealing - is optimal. Firstly, recall that the supply-side concerns with infrastructure of this sort are minimal. This is principally due to the hugely transformative and non-substitutive nature of the use. Any diminution in the value of the exclusive rights attaching to the constituent components is negligible or even negative. Authors wont stop writing books because of Google Book Search. Secondly, on the demand side, we need to ask whether the problem of under-valuation of positive externalities flows up the chain to the point where it prejudices dealings amongst input suppliers and input aggregators. Google may very well understand the nature of the positive externalities enabled by Google Book Search, but, critically, Google cannot possibly measure them accurately or monetise them efficiently because Google itself is even further removed from the creation and distillation of positive externalities than the input buyers in Frischmanns model. Even though transaction costs and information asymmetries are reduced by the introduction of input aggregator in place of a multitude of input buyers,113 this fails to displace Frischmanns central claim, quoted above, that the benefits generated by the relevant outputs escape observation and appropriation. Instead, information aggregators themselves would naturally be drawn towards monetisable benefits. For example, recall that Googles revenue model is premised almost entirely on advertising. If Google is forced to locate copyright owners and negotiate licences with them to make use of books in the way it intends, it could insist on "click-through" arrangements with authors and publishers to defray licensing costs.114 Authors and publishers could either accept this arrangement or reject it. If they accept it there would immediately be an incentive for Google to favour, for example, in print works over out of print titles.115 This skews the infrastructure.
Although note that hold-out problems, a species of transaction cost, could prevent certain publishers from participating in the project at all. 114 The term "click-through" refers to the act of clicking on a banner ad and the subsequent re-direction to the advertisers web site. Advertising charges are often based on the number of times these ads are clicked. 115 Google itself has estimated that relying on books provided by publishers and authors will yield only 20% of the books in existence. See Tim Wu, 'Leggo My Ego: Google Print and the Other Culture War' Slate (17 October 2005) available at http://slate.msn.com/id/2128094/ (last visited 12 January 2006)
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If, on the other hand, publishers refuse to participate on such terms, the utility of the infrastructure itself is diminished. From an economic perspective focussing on supply-side considerations leaves us ambivalent as to whether information providers such as Google should be permitted to freely appropriate works for informational purposes. By emphasising the demand-side considerations in the analysis, however, we can see that an exception within copyright law excusing such use may in fact be optimal. * * * The 'medium shift' from atoms to bits continues at a breathtaking pace. Legacy business models are crumbling as new modes of cultural interaction are created and proliferate. The emerging information space is highly generative, meaning it possesses a peculiar set of characteristics and functions that greatly increase our exposure to information and allow expressive and derivative uses of culture to flourish. This information space, however, is clunky. It remains tricky to navigate effectively and many important elements that we would like to be included are missing. The utility offered by generativity is not fully realised. We therefore need a system of navigation to help us plot our way effectively through the information space in the same way that we rely on maps and roads to realise the full benefits of the physical world. Each is a species of infrastructure. Infrastructures are easy to visualise in the physical world, less so in the emerging information space. Yet, whatever the forum, infrastructures create benefits; initially for individual users of the system and later for society as a whole. Those benefits, however, are often hard to observe, measure or quantify even under ideal market conditions. If we wish to maximise the potential of the emerging information space our legal system must recognise the benefits that certain forms of infrastructure bring. Market mechanisms themselves will fall short. Unfortunately our current laws - developed for the physical world not the world of bits - regard infrastructures for navigating the information space with contempt. Laws, infrastructure, generativity; in that order. Only by getting the first bit right, does the rest fall into place. 6. Providing for informational uses in U.K. copyright law Based on the discussion up to this point, we can identify three mechanisms for introducing into U.K. copyright law an exemption for uses of the type described in this article:116
The mechanisms described in this section are designed to assist entities such as Google. Amendments to U.K. copyright law directly aimed at assisting libraries can also be envisaged. For example, the Bodleian Library at Oxford University is one of a
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1. Reformulating the 'substantial part' test so that intermediary copying may be ignored as part of the analysis. 2. Introducing a specific exception for 'intermediary' or 'informational' use. 3. Introducing a broad purpose-based exception along the lines of the fair use doctrine in the U.S. In the remaining part of this article, the second option is explored in more detail. Arguments can be made in favour of options 1 and 3, but they both remain, for the time being at least, legally and politically unfeasible. Before concentrating on option 2, it is worth briefly explaining why this is the case. The 'substantial part' doctrine was introduced by statute but falls to be interpreted at common law. As discussed above, the doctrine is a nebulous concept that relies principally on a qualitative and quantitative question of fact. It is, however, a vague concept that is often said to be a matter of impression.117 It is critical, therefore, to distinguish this tricky factual inquiry from the more purposive question of whether the taking is of the sort that should be excused. Realigning the substantial part doctrine to account for intermediary copying confuses the two. Indeed, amending U.K. law in this way would, in reality, be a step along the road to recasting copyright law as a right to prevent distribution in place of the notion of the reproduction right as the core exclusive right. A reformulation along these lines, therefore, would not only prove difficult for judges to accept and interpret, it would be the tip of the iceberg. It would require a wholesale rethink as to the structure and form of U.K. copyright law. Again, this may be desirable, even inevitable, but it is
number of 'deposit libraries' that have enjoyed, since 1912, certain privileges regarding the deposit of a physical copies of works following publication. The Legal Deposit Libraries Act 2003 ('LDLA 2003') now regulates these privileges and further provides for delivery of non-physical copies of certain works. Amendments to the LDLA 2003 or secondary legislation introduced under it could provide for the delivery of an electronic copy of new works by publishers or by entities acting on behalf of the library (see LDLA 2003, sections 1(4), 6 and 11). In this scenario, it may be possible to distinguish the legal basis for Google's stage 1 and stage 2 copying. At stage 1 it is acting as agent for the deposit library operating under statutory privilege, and at stage 2 Google's actions are assessed under the basic copyright provisions previously described (see n__-__ above and accompanying text). The legality of this arrangement would, of course, depend on various technical details - in particular the nature of the entity controlling the server on which the digital copy is stored. This option, however, is not explored in greater detail in this article as it fails to assist Google per se, and the intention here is to advocate a solution of more general application. 117 Hubbard v. Vosper [1972] 2 Q.B. 84, per Lord Denning at 94. For a recent critique of the vagueness of the standard see Michael Spencer and Timothy Endicott, 'Vagueness in the Scope of Copyright' (2005) Law Quarterly Review 657.
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a response to a far more general problem than intermediary copying. Additionally, this change may be of no avail to entities such as Google. As previously mentioned, systematic reproduction and communication to the public of small segments of the same work may in certain instances be regarded as a substantial taking. For these reasons possible amendments to the substantial part doctrine are not discussed further in this article. In 1977 the Whitford Committee recommended the U.K. adopt a general purpose fair use defence.118 This recommendation was rejected by the legislature. A number of commentators have since argued for the introduction of such a defence on the basis of its adaptability and techno-neutrality.119 Others note the clear advantages of a fair use defence but emphasise its drawbacks including the risk that a general purpose exception would fail to comply with various international obligations such as the Berne "three-step test",120 the risk of such an exception resulting in more litigation,121 and the problems associated with judicial acceptance of a reformulated scheme of exceptions.122 In any event, for the time being at least, the issue is closed. The European Commission could have adopted the general purpose approach when formulating the Information Society Directive. Instead it chose to draw up a bewildering list of 21 specific exceptions that "take due account of the different legal traditions in Member States."123 And that, as they say, is that. The Commission, under the guise of harmonisation is seemingly in the thrall of a protectionist agenda given the new electronic environment, and it clearly favours predictability over flexibility. Considering its pre-eminent position in formulating European copyright policy, the potential benefits of such a fair use exception are, for the time being at least, a mute point.
Report of the Committee to Consider the Law on Copyright and Designs, 1977 (Cmnd 6732), para.676-677 119 See, e.g., Justice Laddie, 'Copyright: Over-strength, Over-regulated, Over-rated' 18 European Intellectual Property Review (1996) 253, 258-259 120 See Fiona Macmillan, 'Adapting the Copyright Exceptions to the Digital Environment' 1 Digital Technology Law Journal (1999). Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) provides that exceptions to the right of reproduction are permitted in "certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author." 121 See Sam Ricketson, 'Simplifying Copyright Law: Proposals from Down Under' 21 European Intellectual Property Review (1999) 537 122 Robert Burrell, 'Reining In Copyright Law: Is Fair Use the Answer?' Intellectual Property Quarterly (2001) 361 123 Information Society Directive, recital 32 and article 5.
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This leaves option 2. The remainder of this article discusses two ways in which a specific exception for 'intermediary' or 'informational' use could be incorporated into U.K. law. Section 28A Revised - 'Intermediary Use' Article 5.1 of the Information Society Directive requires Member States to provide in their national laws an exception to the reproduction right for "transient" and "incidental" reproductions that satisfy a number of criteria. This mandatory exception recognises that certain technological processes implicate the reproduction right as a matter of course, but nevertheless facilitate beneficial activities. The most obvious examples include copying for the purposes of caching and routing and to facilitate browsing.124 The U.K. has implemented this requirement by adding section 28A to the CDPA 1988. It reads:
"Copyright in a literary work [1], other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition [1], a sound recording or a film, is not infringed by the making of a temporary [2] copy [3] which is transient or incidental [4], which is an integral and essential part of a technological process [5] and the sole purpose of which is to enable (a) a transmission of the work in a network between third parties by an intermediary; or (b) a lawful use of the work [6]; and which has no independent economic significance [7]" (emphasis and notations added).
This exception actually fits Google's Library Project surprisingly well, although readers will no doubt immediately spot problems. The relevant elements of this exception are numbered in square brackets. It is worth considering these elements in turn, beginning with the least controversial points, to see how the Library Project measures up: [1] The exception applies to literary works and typographical arrangements. The vast majority of the works Google plans to scan as part of the Library Project will fall within the ambit of this exception. [3] This exception is limited to making "copies" and not, for example, to other rights such as communication to the public. Here, it is critical to recall the distinctive stages in the Library Project. Stage 1
See Information Society Directive, recital 33 (caching and browsing); Directive 2000/31/EC, [2000] OJ L 178/1, articles 13-14 (excluding liability for certain intermediaries who cache or host content if certain conditions are met).
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copying is limited to making and storing copies. rights are only implicated at stage 2.
Other exclusive
[4] The word incidental suggests that the copying must be done for some other ultimate purpose. This fits neatly with the Court of Appeal's fair dealing analysis in Pro Sieben which, as has been suggested above, would be of assistance to Google. [5] From a technical point of view digitised copies are needed to make a fully searchable electronic archive function. The exception does not place any restrictions on the type of technical process to which it relates (e.g. "lawful" or "noncommercial"), so the process is judged solely by its technicality. Google, it is suggested, satisfies this limited inquiry. Slightly trickier: [6] As previously discussed, the stage 2 copying that is "enabled" by the technical process at stage 1 may fall on the insubstantial side of the substantial part test. If so, reproduction and communication to the public of small segments of a work would constitute a lawful use, or more accurately a non-unlawful use. In the case of the Library Project, however, this issue is not clear cut. [7] The economic significance of the project (to the extent that it is "significant") is defined by the stage 2 copying. Although Google relies on stage 1 copying for an economic end, it is important to distinguish the economic significance of this incidental use from the economic significance of the transmission or, in the present case, the (potentially) lawful (insubstantial) use.125 Regarding the incidental use, the economic concern of publishers that a repository of digital copies of works is an easy target of hackers who could "leak" copies onto the internet is properly a concern of tort law. Similarly, the problem of Google employees having access to copyright works procured at zero-cost can be adequately dealt with by appropriate internal use policies. In short, the economic significance of the incidental use is limited to concerns that should be addressed through liability rules rather than property rules.126 This aspect of section 28A is not designed to address questions of market harm or lost licensing opportunities that are a step removed from the incidental use.
This point was recognised in the Opinion of the Economic and Social Committee on the proposed Information Society Directive which stated: "It should perhaps be made clear that the independent economic significance in question is independent to the use of the work in question, not to its transmission," OJ C 407/30 (28 December 1998) 32 126 See Guido Calabresi and A. Douglas Melamed, 'Property Rules, Liability Rules, and Inalienability: One View of the Cathedral' 85 Harvard Law Review (1972) 1089
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And finally, the deal breaker: [2] The inclusion of the word "temporary" implies, at the very least, a lack of permanence.127 This is not the case with the Library Project. "Temporary" is not defined in the CDPA 1988 or the Information Society Directive. Recital 33 of the Directive does, however, state that acts that enable browsing should qualify for the exception, but only "to the extent that they meet [the] conditions [of the exception]." This statement is circular and only useful as a guide to assist interpretation. This exception fails to assist Google. Interestingly, however, the main defect with the exception as it applies in Google's case would be removed if the word "temporary" was replaced with the word "intermediary". Google would have a good arguable case if this amendment was made. This would also make the exception more coherent. As presently worded, the exception talks of copies being "temporary" and "transient or incidental".128 This duplication of concept of non-permanence - through the use of the words "temporary" and "transient" - effectively makes the "or" before the word "incidental" redundant. Copies must be incidental to some ulterior purpose and short-lived in nature. The word "intermediary" better captures the either /or nature of this latter requirement and would better equip the exception for unforeseen but desirable uses of copyright works enabled by digital networked technology. This may, in fact, have been view adopted by the European Parliament when it proposed amendments to the Commission's original proposal for the Information Society Directive. The amendment deleted the word "temporary" from the provision and provided that:
"Transient and incidental acts of reproduction which are an integral and essential part of a technological process for the sole purpose of enabling use to be made of a work or other subject matter shall be exempted Such uses must be authorised by the rightholders or permitted by law and must have no economic significance for the rightholders."129
Copinger, 9-16 This wording is the result of the unfortunate juxtaposition of the wording originally proposed by the Commission and the amended wording proposed by the European Parliament. For a comparison chart of the various proposals prior to the agreed Common Position see http://www.ukcle.ac.uk/copyright/comparison_chart.html (last visited 12 January 2006) 129 OJ C 150/171 (28 May 1999) 178
127 128
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It is suggested that the "transient and incidental" wording in this proposal is not necessarily cumulative and could easily be interpreted as referring to a range of acts including transient acts and incidental acts. Use of the words "intermediary copy which is transient or incidental", as suggested above, would be clearer still. The Commission, however, retained the word "temporary" in its amended proposal, and this word now forms part of U.K. copyright law. An amendment along the lines outlined above would provide more latitude for developers of "technological processes" and would encourage courts to properly focus on the economic significance criterion of this exception. Fair Dealing for 'informational purposes' Alternatively, and more decisively, the U.K. government could introduce a specific exception: "fair dealing for informational purposes".130 This exception would dispense with the need for hairsplitting assessments as to the distinction between stage 1 and stage 2 copying in relation to the Library Project. That distinction exists as one of technical necessity and is less important than the question of whether the underlying purpose of the use accords with copyright's overarching incentive and dissemination functions. A fair dealing exception of this sort should: 1. Apply only to works that have previously been made available to the public. 2. Include a requirement that a sufficient acknowledgement be given. 3. Apply to persons other than those making use of the information (i.e. third party copying). Each of these conditions is taken or derived from existing fair dealing provisions.131 Condition 1 accounts for the fact that the wishes of authors of unpublished works who do not want information about
On 2 December 2005 the Chancellor, Gordon Brown, announced he was asking Andrew Gowers to lead an Independent Review to examine the UKs intellectual property framework. The terms of reference include the question of "whether provisions for 'fair use' by citizens are reasonable". Mr Gowers is expected to report to the Chancellor, the Secretary of State for Trade and Industry and the Secretary of State for Culture, Media and Sport in Autumn 2006. For more information see http://www.hmtreasury.gov.uk/independent_reviews/gowers_review_intellectual_ property/gowersreview_index.cfm (last visited 12 January 2006) 131 See CDPA 1988 section 30(1A) (condition 1); CDPA 1988 section 29(1) and 30(1) (condition 2); and CDPA 1988 section 29(3) (condition 3). Regarding the third condition the wording in section 29(3) is too stringent, and copying by any person for informational purposes should be permissible.
130
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their work to be divulged should be respected; condition 2 is an essential characteristic of the informational purpose itself; and condition 3 places "input aggregators" such as Google squarely in the frame of the exception. This third condition, however, should not require that third parties are operating for non-commercial reasons. The critical question is how we define "fair dealing for informational purposes." Characterising this as a "fair dealing" exception is important as it furnishes courts with the analytical tools embodied in existing case law. These tools include Lord Denning's classic account of "fairness" in Hubbard v. Vosper,132 and the Court of Appeal's holding in Pro Sieben v. Carlton that preliminary or intermediary copying of a larger portion of the work is itself fair when it accords with the "ultimate purpose" of the dealing.133 These cases define the parameters of the fairness and should be utilised accordingly. As to the nature of the "dealing", we have no guidance from case law, so guidance should be provided in the statute itself. The word "informational" should be understood as conveying information about the essential attributes of the work in question.134 This includes subject matter, format and structure. It should not exempt uses that serve as a vehicle for delivery of expressive content that characterises the skill and labour of the author. Displaying the contents page or index of a non-fictional historical account meets these criteria. Streaming a 30 second sample of a newly-released sound recording would not. This definition of "informational" works well with textual subject matter, but less well with photographs or artistic works. Here, as in Kelly, the exception should include non-exploitative representations of the work. Uses of this sort are, however, difficult to predict and it is submitted that the appropriate balancing act is best performed by the factors typically considered in the "fairness" assessment provided that the ultimate use is non-exploitative. Synthesising these elements provides a new fair dealing exception worded as follows:
"(1) `Fair dealing with a work by any person for informational purposes does not infringe any copyright in the work provided it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.
See n__ above and accompanying text. See n__ - __above and accompanying text. 134 The Collins Concise Dictionary (HarperCollins: 2001) defines "attribute" as "a property, quality, or feature belonging to or representative of a person or thing."
132 133
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"(2) For the purposes of sub-section (1) an informational purpose means copying or communicating to the public the essential attributes of the work in question including its subject matter, format and structure and any other elements that may be necessary given the nature of the work in question and provided that these elements are copied or communicated to the public in a non-exploitative manner"
Although the Information Society Directive is a botched attempt to harmonise copyright laws across the E.U.,135 the introduction of an exception of this sort now appears to fall squarely within the competence of the European Council and Parliament. The question is whether the proposed exception satisfies the terms of the Information Society Directive, or whether a new pan-European legislative initiative is needed. Article 5(3)(d) of the Directive provides:
"quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless it turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose."
It can be argued that the use of the words "such as" means this exception is open-ended in nature, so as to be adaptable to other purposes that accord with the principles underlying exceptions for criticism or review. Many regard broad exposure to works as a democratic end in itself.136 Fair dealing for informational purposes serves this same goal but at the "process" stage rather than the "output" stage.137 If we make this conceptual leap we can see that the terms of this exception - "available to the public", indication of "source", use in accordance with "fair practice" - echo the terms of the fair dealing exception suggested above. It is submitted that the proposed exception can be construed as falling within the express wording of the Information Society Directive. Failing that, the Directive itself contains mechanisms for introducing new exceptions should this prove necessary. 138
See, e.g., P. Bernt Hugenholtz, 'Why the Copyright Directive is Unimportant, and Possibly Invalid' 22 European Intellectual Property Review (2000) 499 136 See, e.g., Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It 114 Yale Law Journal (2004) 535; Joseph Liu, Copyright Laws Theory of the Consumer 44 Boston College Law Review (2003) 397 137 See Cohen, supra n__; Michael Madison, Rewriting Fair Use and the Future of Copyright Reform 23 Cardozo Arts & Entertainment Law Journal (2005) 391 138 Under Article 12 of the Information Society Directive the Commission must, every three years, prepare a report for the European Parliament, Council and the Economic and Social Committee on, inter alia, the application of Article 5 in light of "the development of the digital market." The Commission can also suggest amendments to the Directive "where necessary."
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7. Conclusion For those who eulogise the internet's potential, Google's Library Project has somewhat limited ambition. Users, after all, will only be able to read tiny extracts of works unless the book is in the public domain or the copyright owner consents otherwise. Where's the fun in that? It's certainly only a small step on the road to creating a fullydigitised, fully-accessible, full-text global library and realising the potential of the technological landscape we now inhabit.139 But small steps come at a price. And for publishers it's not a question of should, it's a question of can't. For them, the law talks of exclusive rights for a reason. Usurping this exclusivity for laudable purposes is simply not part of the existing bargain. At least not unless they're getting paid for their sacrifice. This, as is so often the case, however, remains a battle amongst intermediaries whose interests are easy to ascertain. Yet copyright's fundamental concern is not with these mid-points in the chain; it's entitlement structure is designed for the benefit of authors and users, the end-points.140 For each, an infrastructure to effectively navigate the generative grid represents significant progress. On this question their interests are aligned, so adjusting the entitlement structure is, for them at least, a non-zero-sum game.141 Intermediaries, of course, remain important, but only as a secondorder function. The question of privileging one set of intermediaries over another set must yield to the mutual interests of authors and users. We need not tie ourselves in knots over the intermediary pecking order. Copyright law, increasingly, ignores this dynamic. Recognising it points the way for reform.
See, e.g., Siva Vaidhyanathan, The Anarchist in the Library (Basic Books: 2004), pp.115-129; Travis, supra n__ 140 See, e.g., Ganley, supra n__, 299-300, 303-304, 306-307, 317 (discussing the intermediary function and the beginning and the end of the copyright chain, at 317). For a fascinating and thought-provoking discussion on the historical foundations of U.K. copyright law in general and a counter-point to the widely-held assumption that the origins of copyright doctrine revolved around concern for booksellers see generally Ronan Deazley, On the Origin of the Right to Copy (Hart Publishing: 2004) 141 See Wikipedia, 'Zero-sum' available at http://en.wikipedia.org/wiki/Zero-sum (last visited 12 January 2006)
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Table 1: Library Project positive-spin fair use assessment

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