The complex issues surrounding the huge Google Print project go some way towards illustrating the point as well as throwing a light on how complicated the concept of "?fair use"? can be. Google has a mission to "organise the world'?s information" in such a way as to make it accessible via Google's Internet search engine. As part of this they have embarked on a project hoping to digitise all the books that have ever been published and to make the contents of these books searchable, in a way that would bring a book to the attention of the information searcher which they might never otherwise come across e.g. a long since out-of print title. In some ways it is a bit like the Amazon "?search inside"? feature. Google are not going to make the entire contents of the books accessible to searchers, just sufficient to enable people to figure out whether accessing (through borrowing or purchasing) that book would be useful to their endeavours. The benefits to searchers are fairly obvious. The ability to track down an old treasure of a book that may no longer be commercially available or comprehensively catalogued in a library would be of tremendous use. The benefits to publishers are also clear. Books in back catalogues suddenly become visible and commercially viable again, particularly given the availability of print production technology that allows profitable production and sales of low volumes of particular titles.
However, in scanning and digitising all these books, unless the copyright has expired, Google is engaging, prima facie, in massive copyright infringement. Google are getting the books directly from the publishers and from a number of major libraries such as Oxford University's? Bodleian Library. They have been copying millions of library books in their entirety without the publishers'? permission in some cases since the beginning of the year. Google have decided to temporarily suspend the copying of books until November to give publishers an opportunity to contact them to opt out of having their books scanned and this has led to a renewed debate in the media about the merits and otherwise of the Google project.
Under the "fair use"? doctrine is it ok for Google to copy these books without permission in order to use them for a "?transformative"? purpose i.e. to make them electronically searchable? It is not competing commercially with publishers and arguably could be enhancing the market for their books but perhaps a publisher might like to create its own comprehensive contents searchable index, drawing searchers to their own websites? What happens if Google gets into the publishing business further down the line? They could potentially bias search results towards their own material.
Reasonable people and copyright scholars, interpreting the language of the copyright statutes and the precedent setting cases, can disagree about whether the Google copying is either "transformative"? or "fair use."? Some cases in the US might point towards the Google activity being permissible e.g. Kelly v. Arriba Soft Corp./Ditto.com (decision in 2003 in a dispute over making digital thumbnail copies of images available via a Web search engine). Others e.g. the MP3.com case (in 2000, a dispute over copying thousands of CDs to make them available via the Internet to people who could prove they had a legitimately acquired copy) suggest not and Google might be held liable for copyright infringement.
In the EU, unless the activity is specified as permissible, arguably it is prohibited. Under articles 2 and 5 of Copyright Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, the Google project does not appear in the list of exceptions (art.5) of permitted activity, so is presumably not allowed.
So we will not find out whether the Google Print project is permissible in law until it gets challenged through the courts, if that ever happens.
I'd be grateful for any feedback, especially on my interpretation of how the mechanics of copyright law applies here. Although I'm fascinated by the Google Print project and I think it is an excellent initiative, I'm a technologist, not a lawyer.
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