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Wednesday, April 20, 2016

Petition DENIED: SCOTUS declines to hear Authors Guild copyright challenge to Google Books

By Suzy Roessel, Senior Associate

The United States Supreme Court has denied a petition for a writ of certiorari filed by the Authors Guild and other individual authors to challenge a decision of the Federal Circuit in Authors Guild v. Google, Inc., 804 F. 3d 202 - Court of Appeals, 2nd Circuit 2015.

The Supreme Court's refusal to hear the challenge marks the end of the Google Books saga, which began in 2005, and leaves in place the decision of the US Court of Appeals for the Second Circuit. In that case, a unanimous bench said that the case "tests the boundaries of fair use" under US copyright law.

Through Google Books, Google made digital copies of books without permission of rights holders, scanned those copies, and established a publicly available search function whereby an internet user can freely search for content and view snippets of text containing the searched-for terms. Google also allowed participating libraries to download and retain digital copies of books they submit under agreements which commit the libraries not to use their digital copies in violation of the copyright laws.

The Second Circuit held that such activities fell within the "fair use" defence. Under 17 U.S.C. § 107, fair use of a copyrighted work is not an infringement. The section sets out a non-exhaustive list of four factors to be taken into account in determining whether or not a particular use is fair, being:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
The Second Circuit found that Google's making of a digital copy to provide a search function was a transformative use, such that the information made available to the public was about the authors' books without providing the public with a substantial substitute for matter protected by copyright in the original works. The Court rejected the argument put by the Authors Guild that Google had deprived rights holders of access to paid and unpaid licensing markets for substantially the same functions that Google provides in part because such markets were in fact had very different functions to those provided by Google, and in part because author's derivative rights do not include an exclusive right to supply information about the works. Although Google's use was of a commercial nature, the court did not consider that this profit motivation justified denial of fair use. 

The Author's Guild has stated on Facebook "No SCOTUS for Authors Guild v. Google. Thanks to our supporters, we'll keep fighting to protect copyright & authors' interests."

Advance Australia fair use?

Australian law does not include a fair use exception – instead the Copyright Act has a scattering of narrow and specific exceptions to copyright infringement, including the "fair dealing" exceptions and a handful of others. 

In February 2014, the Australian Law Reform Commission published a Final Report for its inquiry "Copyright and the Digital Economy", which considered whether existing copyright exceptions were adequate and appropriate in the digital area and whether further exceptions should be recommended, including a fair use exception. The report has been tabled in Parliament, recommending that "the Copyright Act 1968 (Cth) should provide an exception for fair use" and repeal certain other exceptions including the fair dealing exceptions. The Productivity Commission is currently considering this recommendation (as part of a broader review of Australian Intellectual Property laws), and is due to release a Draft Report for further feedback at the end of this month, followed by an Inquiry Report in August 2016. 

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