Google Wins Fair Use Exception in Copyright
Monday 18 November 2013 @ 9.57 a.m. | IP & Media
As previously reported by TimeBase, the Australian Law Reform Commission (ALRC) is currently undergoing a review of the Copyright Act 1968 (Cth) which suggests the adoption of "fair use" provisions very similar to that currently in use in the USA.
With the win by Google yesterday in the drawn out litigation between them and the Authors Guild, it was determined that Google’s ambitious mass digitisation project - to scan the world’s books and make them discoverable online - is “fair use” within the ambit of the law.
Normally, scanning books counts as an infringement of copyright – the law prohibits people from making copies of books without permission. “Fair use” is the safety valve in this system: it enables people to do things with copyright works that are in the public interest including a four factor balancing test:
- The purpose and character of the use – for example, is it for commercial use; for educational purposes; news reporting etc.
-
The nature of the copyright material used –for example, does it list or describe factual information, or is it highly creative;
-
The amount and substantiality of the material used;
-
The effect on the potential market for or value of the material
This Google Books decision means a massive digitisation project, with huge social benefits for access to knowledge, is legal under US law. Unfortunately, this would never be possible in Australia as Australian law doesn’t have “fair use”; instead, there is a set of "fair dealing" defences, which allow people to make a very limited range of uses.
These include research and study, criticism and review, parody and satire, and news reporting. We also have a few very technology specific exceptions – it’s permissible to make a digital copy of a VHS tape but not a book. You’re allowed to copy the music on a CD to a MP3 player but not a movie from a DVD to a tablet.
The current structure of Australian Copyright Law would preclude Google from indexing any books of Australian origin without first gaining the approval of each individual copyright author - only one of many reasons, as well as encouragement in electronic innovation, why the ALRC is currently considering widespread reforms.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
