Essay: Copyrighted materials

The Internet age of today has substantially changed the world of photography, journalism and the music industry, making it both more simple and complicated at the same time. On the one hand, websites such as YouTube and Facebook enable providers to make their material more widely available and make it possible to reach more people than ever before. However, this easiness also comes at a cost.
Due to the fact that material is very accessible, it becomes much more difficult to protect the copyright of the maker of the material and to establish whether this copyright has been infringed. Given the increasing presence of internet and its usage, a consistent approach to this issue will become more important and relevant in the upcoming decades.
During the last couple of years many new court cases have been filed by copyright holders who claimed that their copyright was violated and sought compensation and protection. One of these cases was Authors Guild et al. v Google Inc. which has been going on for over 10 years.
Authors Guild et al. v Google Inc. is a copyright case which was filed in the United States of America (US). The case concentrates on the accusations made by Authors Guild et al. that Google Inc. (Google) violated their copyrights by developing the Google Book Search database. Since 2004, Google scanned more than twenty million books as a part of their agreements with several research libraries to copy books in their collections digitally. Google initiated an electronic database of books, made books and papers available for online searching and it provided digital copies to participating libraries.
A large amount of the books that were scanned by Google, were under copyright protection and Google did not acquire consent from the copyright holders to use their works. For this reason, the Plaintiffs filed this lawsuit charging Google with copyright infringement.
This thesis aims to examine in which way the interest of both the authors and the public could be carefully balanced when approaching a case such as Authors Guild et al v Google Inc. For that reason, the central research question which will be dealt with in this thesis is: ‘What would be the desired copyright legislation in relation to the use of copyrighted materials such as in Authors Guild et al v Google Inc.?’
In order to provide an answer to this research question, firstly it has to be determined against what background the Google Books debate takes place. This will be addressed in the next chapter of this thesis in which it is explained which parties are involved in this debate, which interests they have and what arguments they have for their position. It is necessary to establish what the big picture of this debate is in order to establish the desired copyright legislation. Furthermore, this chapter also focuses on which elements the desired copyright legislation should contain and which rights should be balanced.
In addition, the next step towards an answer to the research question of this thesis, is focusing on the case of Authors Guild et al. v Google Inc. and to see how the courts in the US have dealt with this case. Attention will be paid to this in the third chapter of this thesis. Furthermore, in the fourth chapter the focus will be on European Law. The two main questions that will be considered in this chapter are: ‘if this case would be filed in a European Union Member State, would the ruling be different than the ruling in the US?’ and
‘Which copyright legislation does the EU provide in relation to use of copyrighted material such as in of Authors Guild et al. v Google Inc. and how does this differ with the copyright legislation in place in the US?
In Authors Guild et al. v Google Inc. some legal concepts are used and interpreted differently in the US and the EU, such as the restrictions to copyright. Analysing the underlying ideas which cause these differences and the consequences which result from them, can be used to conceptualize a desired legislation in relation to cases such as Authors Guild et al. v Google Inc. It shows the strengths and the weakness of the copyright legislations and provides the opportunity to implement the lessons that can be derived from the analysis.
Therefore, after the copyright legislation of the EU and the US have been discussed, a critical analysis of these legislations will be given in chapter five. A comparison will be drawn between the two copyright legislations and the strengths and the weaknesses the legislations will be examined by looking at effects and implications that are documented in academic researches. Moreover, a proposition will be made regarding the desired copyright legislation in relation to the use of copyrighted materials such as in Authors Guild et al v Google.
The sources used to provide a response to all these questions, mainly consist of all the documents related to the case Authors Guild et al. v Google Inc., EU case law and directives. However, also information derived from academic papers in the fields of law and economics and websites which show opinions are used in this thesis.
II Theoretical background
In order to determine the desired copyright legislation in relation to the use of copyrighted materials such as in Authors Guild et al v Google (the Google Books case) and to see which values and right should be incorporated into such a legislation, it is necessary to discuss the arguments of the actors involved in copyright cases. Nonetheless, it is of big importance that the concept of copyright itself is explained first.
The concept of copyright
According to the Merriam Webster dictionary, copyright can be defined as: ‘The exclusive legal right to reproduce, publish, sell or distribute the matter and form of something (as a literary, musical, or artistic work).’ Another description that is widely used for the term copyright is: ‘A right given to the creator of an original work to control the use made of it, such as copying, performing, adapting.’ Furthermore, it exists in various types of work for instance, in books, images, websites and so on.
During the research conducted for this thesis not many contrasting definitions of copyright could be found in general than those presented here and no descriptions were discovered that differed in various ways from those mentioned in the last paragraph. Therefore, in this thesis the term copyright is used in line with the descriptions above.
Another important term to define is copyright infringement. Copyright infringement could be defined as: ‘The use of works which are protected by copyright law without permission and which do not fall under the legally determined restrictions of copyright. It infringes certain exclusive rights granted to the copyright holder.’
In these situations, the copyright holders are enabled to invoke legal measures to prevent and penalize copyright infringement. Also for this term, no descriptions were discovered that differed from the one that has been mentioned. Therefore, in this thesis the concept of copyright infringement is used in alignment with the description above.
The concept of copyright has been developed in a time when the printing technology was just starting to produce increasingly more numbers of copies of a text less costly and more rapidly. However, nowadays we live in a completely different world. The technology of today makes it very challenging to prevent people from making copies quickly and at a negligible cost.
Besides the technical issues, the gap between the legal rules and what can be defined as social norms in the field of illegitimate sharing of computer programs, movies and music can also be defined as very substantial. For instance, several researches have indicated that illegal file sharing through the internet is seen by a large part of the world population as a normal element of their daily life, regardless of regulations protecting against copyright infringement of the country. Another example of this considerable gap is that the last couple of years, there have been a number of Pirate Parties which had seats in regional or national governments.
Copyright law attempts to balance the rights of the owners and users of copyright materials. In order to look how this balance should be integrated and which values should be taken into account, the main arguments against and in favour of having copyright protection in regards to copyright and copyright law will be discussed now.
Viewpoints in regards to copyright
To give a clear picture of the background of the debate in copyright cases, this chapter is divided into two parts. The first segment will examine viewpoints that support copyright from the perspective of the copyright holders and the society in general. The second part will focus on the standpoint of opponents of copyright from the perspective of the society as a whole including users of copyright material.
Proponents of copyright
Copyright holders
The main argument copyright holders use is that they need incentives and rewards for their endeavours, and a strong copyright legislation is necessary to provide these incentives and rewards. Others also point out that in the absence of intellectual property protections like copyright and patents, numerous kinds of intangible assets would be under-produced for the reason that there would be insufficient rewards for organizations to produce them. Artists, actors, directors, producers and writers rely on copyright protection to make a living and to fund the production of their works.
Society
Firstly, one argument that has been used to support copyright is that strong protection and enforcement of copyright are vital for reaching a stronger and better economy. The reasoning behind this statement is comparable to the arguments mentioned by the copyright holders.
If there is not enough protection and enforcement of copyright laws, there would be insufficient economic encouragement to produce music, movies et cetera. If these works would be protected with copyright, this would therefore stimulate this part of the economy.
This argument is supported by a report by Price Waterhouse Coopers that concluded that the system of copyright was particularly important in incentivising investment in the development of new content in the UK economy. Furthermore, it also underpins significant economic growth across the UK economy according to their research.
Additional examples related to intelligence protection in the form of copyright benefiting the economy, are the success stories about India and Hungary. India and Hungary were among the first five countries where statutory law explicitly recognized copyright protection of computer programs. In the case of India, her performance in this fields is remarkable as she is leading the developing countries in this activity. There is a common agreement that in the success story of numerous small and medium enterprises, the early introduction of copyright protection played a decisive role and the same holds for Hungary.
On the other hand, the economic usefulness of copyright is often disputed by opponents of copyright law. The methodology of studies carried out by the industry to measure losses caused by copyright infringement has been heavily criticized.
It has proved to be very challenging to measure what the economic losses are caused by copyright infringement. For instance, if copyright is enforced strictly and nobody could illegally download anymore, would every person purchase all the songs that it would have illegally downloaded if the person had the chance? In other words, would every song, which is illegally downloaded, result in a purchase if copyright is enforced or not? If the latter is the case in some instances, no actual loss is caused by that illegal download, since it would not had been purchased by the person anyhow.
Another argument that has been proposed to support copyright from the perspective of the public is that copyright stimulates innovation and creativity. Some scholars believe that without a serious period of legal protection of future income of creators, many invaluable artworks would have not been created.
Furthermore, some even argue that the interest of the public is also best served by extending the term of copyright to encompass multiple generations beyond the lifetime of the copyright holder. This will increase the present value of the copyright which encourages the creation of new works and make investments in older works economically viable. In addition, since this will mean that the heirs of creators also continue to profit, this gives a substantial motivation for fresh work even if authors age as well. Criticism of opponents is that copyright restricts creators to build on published expressions. However, this argument is disputed by proponents by stating that copyright only protects the expression of the works of the copyright holder and not the system or the ideas behind it.
Additionally, a consequence of absence of substantial enforcement of copyright law could be that commercial activities of those who steal well-known works and publish those undermine the chance on the market for the ones distributing works in a legal way, and for the ones who take the risk to invest in new, less-known, creators. Stealing well-known works and publishing them in a system where there is no substantial enforcement is very cheap and therefore, innovation and creativity is not encouraged by since it does not have a real chance to succeed.
Opponents of copyright
Society
From the perspective of users of copyright materials and the society as a whole, various arguments can be pointed out to be opposed to copyright. These arguments indicate essential values which have to be taken into consideration in defining a desired copyright legislation.
For instance, one of these arguments is the point whether copyright law is able to cope with modern technologies such as the internet and if it is potentially better to search for other solution than legal actions. Some argue that copyright has become absolute with regards to the internet and costs involved with enforcement are unreasonably high. Owners and creators are according to them far better helped by taking in mind the wants and needs of customers than by filing law suits.
Furthermore, another point that has been made is that enforcing copyright is challenging and very ineffective. According to this viewpoint, at most, internet users have to search a bit longer or have to settle for less convenience when looking for illicit movies or TV episodes.
Another solution could be more effective such as making more content available via pay-on-demand. Opponents of copyright state that many people understand that consumers need to pay for the media content, since the industry would otherwise collapse and that people are willing to pay, but entertainment companies should meet them halfway.
Instead of focusing on the needs of the customer and investing in new technologies which benefit both the copyright holders and the consumer, copyright holders have the option to choose filing lawsuits. In this way, copyright also hinders innovation of new technologies.
Another argument that has been made by opponents is that copyright could lead to misuse of the exclusive right of reproduction and adaption by the holders of copyrights such as by anti-competitive practices. For instance, in regards to copyright on software, it should be possible to use error protection or to observe and to study the functioning of the program in order to determine the ideas and principles underlying any element of the program. If this is not the case, copyright could block innovation and the creation of creative works.
Another way copyright could depress innovation and creation according to opponents of copyright, is by the prolongation of the copyright term. According to them, the intrinsic freedom of information and the concept of the public domain are necessary precepts for creators to be able to build on published expression. As already mentioned, the proponents point out that copyright only protects the expression of the works of the copyright holder and not the system or the ideas behind it.
Nonetheless, opponents still state that copyright limits creators in building on published works, especially if the terms of copyright are repeatedly extended to last beyond the lifetime of the audience which experiences and knows of the original works. In this way, the precepts of the freedom of information and the public domain are gradually being eroded.
In addition, copyright can also limit the fundamental right to information and the freedom of expression. Although copyright law attempts to balance the right to property of the author and the right to information of the public, it is ‘by its nature an interference with the right to freedom of expression’. A publisher cannot reproduce protected material without a licence or he or she will violate copyright law. As a result, the publisher’s freedom of expression has been limited by copyright law.
Nevertheless, in some cases the use of protected material without a licence is allowed if there is a pressing reason requiring publication in the public interest. However, the possibility of loss in court if there is a lawsuit and the influence of insurance corporations which are against the risks of a possible lawsuit, usually results in the fact that materials without explicit permission will not be used. Therefore, although certain defence provisions exist, the very existence of copyright law restricts the freedom of expression and the right to information.
Conclusion
Thus, what the above teaches us in term of desires for copyright legislation are that first of all, one of the objectives of copyright law should be to balance the public benefits that could arise from the extensive distribution and use of a work that has copyrights with the committal to supply protection, motivation and compensation to the owner of the copyright by providing a constrained monopoly to profit from the copyright.
Secondly, one of the aims of copyright law should also be to promote artistic creativity, innovation and economic growth. These values should be protected by the copyright system by granting appropriate economic rights to creators and other copyright holders. However, the law should also prevent misuse and incorporate exceptions and limitations in such a manner that copyright law does not block creativity and innovation.
In addition, the desired copyright legislation should take into account other public interests as well. The law should make appropriate exceptions to and limitations on the rights of copyright holders in order to guarantee the freedom of expression and the right to information.
III The Google Books case and the copyright legislation in the US
In order to provide an answer to the main research question in this thesis regarding the desired copyright legislation in relation to the use of copyrighted materials such as in Authors Guild et al v Google Inc., the next step is focusing on the Google Books Program (Google Books) and on the manner the courts in the US have dealt with this case.
As was mentioned in the introduction, the Google Books case is a copyright case which was filed in the United States. It concentrates on the accusations made by the Authors Guild et al. that Google infringed their copyrights by creating the Google Book Search Database. To give a general overview of the case, firstly the judicial procedures which were followed will be covered. After this, Google Books will be more thoroughly explained. Subsequently, the copyright law which was applicable in this case will be discussed. And lastly, the reasoning of the judges will be examined.
Judicial procedures
In 2005 the Authors Guild et al. and the Association of American Publishers sued Google independently for copyright infringement. Google countered that the project was protected by the fair use doctrine. The lawsuits of Authors Guild and the Association of American Publishers were eventually consolidated and a settlement was proposed. The amended settlement was eventually rejected in 2011 by US Circuit judge Denny Chin after receiving a significant amount of criticism based on a variety of grounds including, inadequacy of the proposed classes of authors and publishers, antitrust and that it would give Google a significant unfair advantage over competitors.
The Association of American Publishers settled soon after, but the Authors Guild and several others continued their case.
In 2011 the proposed class action of the Authors Guild et al. was certified. Google made an appeal to that decision and in July 2013 the United States Court of Appeals for the Second Circuit (Court of Appeals) rejected the class certification and returned the case to the United States District Court of the Southern District of New York (District Court) for consideration.
In late 2013, US Circuit judge Denny Chin of the District Court discharged the lawsuit determining that the actions of Google were justified. The Authors Guild et al. appealed the ruling to the Court of Appeals. In late 2015 the Court of Appeals affirmed the ruling of the District Court. They found that Google had not violated intellectual property law and that the Google Books Program provides an important service to the general public. After this, the Authors Guild et al. petitioned the US Supreme Court. In April 2016 the Supreme Court declined to take on the case.
Google Books
In 2004 Google announced two programs in regards to digital books. The first program concerned the display of material given by rights holders of books and it became known as the Partner Program. The second program which is called the Library Project, evolved over time into making digital copies of books which are in the collections of the Library of Congress, the New York Library and several university libraries.
Together these two programs are the Google Books. All kinds of books are included such as, reference books, dictionaries, poetries, autobiographies, books for children etcetera. Approximately seven percent of the books are fiction and about 93 percent are non-fiction. Furthermore, Google Books compasses both in-print and out-of-print books.
The rights holders of works which are publically shown as part of the Partner Program, were asked for permission. The purpose of this program was to help publishers sell books and to make it easier to discover books. At first, Google divided the revenues from advertisements with right holders in some circumstances. However, in 2011 Google stopped showing advertisements in connection with all books. The partners gave Google a digital copy or if one did not exist yet, a printed copy for scanning. Partners themselves determined how much of their books were shown online. In the beginning of 2012, the Partner Program included nearly 2.5 million books and for the Library Project, Google has scanned more than 20 million books.
In regards to the Library Project, participating libraries are contractually committed to follow the copyright laws with respect to the books. Furthermore, they are only allowed to download a digital copy of the books from their collections. They are not allowed to obtain a digital copy from a book which is in another Library. As a part of this program, Google also creates more than one copy of each book it has scanned and it maintains digital copies of every book on its servers and back-up tapes. However, Google did not seek or receive permission from the copyright holders of the books to make digital copies or to display parts of the books. Furthermore, Google also did not compensate copyright holders for the copying and making digital copies of the books available to libraries.
The technology that was used for the digital scanning of the books is ‘optical character recognition technology’ which generates machine-readable text. Google analysed every scan and developed an index of all the books that were scanned as part of both the Library Project and the Partner Program. The index connects every word or sentence in every book to the part in all of the books in which the word or sentence appears. Hence, a particular word or phrase can be searched.
Google created an online search engine in order to make it possible for everyone to search for books. Since the digital copies are made of the full text of the books, a user can search the full text of all the books in Google Books. Users of Google’s search engine are allowed to use any search terms they desire and in return, Google provides a list of books in which the search term is present. A user is enabled to click on a result of the search which directs to an “About the Book” page that provides a link to sellers of the book and information about the book including how many times the search term has appeared in the boo and in which context by either showing the whole book or using the snippet-view function.
The in-copyright books for which no partnerships are in place, are only displayed in snippet view and not in full view. This means that Google divides every page of the book into eight parts, each of which is a snippet. Each search results in three snippets, but by conducting multiple different searches, one user may view more than three snippets of one book. To prevent this, Google has taken security measures, such as putting the position of each snippet fixed within the page, so that the snippet is not dependent on the search term. Furthermore, one of the snippets on each page and one out of ten full pages in each book will not be shown meaning that a person who tries to get the entire book by determining the search results with the use of a physical copy, is not able to obtain at least one snippet from every page and 10 percent of all pages. Additionally, books in which short parts are very meaningful on their own, such as cookbooks and dictionaries, are excluded from snippet view.
Thus, Google has made digital copies of millions of books and has set up an online search engine focusing on books. As part of this program, a user is enabled to search for phrases or words in books and in case of copyrighted books, is not only provided with the information on how many times the search term appears in a book, but also is shown small pieces of the book in which the search term appears to determine whether the term is used in the context that the searchers is interested in. Nonetheless, copyright holders of the books that were scanned as part of the Library Project did not authorize the scanning of the books and no compensation was given to them.
Applied copyright legislation
The precise issue that has been put before the District Court and the Court of Appeals was whether the use of in-copyright works by Google was indeed legitimate and whether their defence holds up. Title 17 of the Code of Laws of the United States of America (US Code) outlines the regulation which concerns copyright. In addition, two parts of US copyright law specifically apply in this case: paragraph 106 and 107 of Title 17 of the US Code.
Paragraph 106 establishes which exclusive rights copyright holders have. This is specifically of importance in this case, since the Plaintiffs’ claim that some of these exclusive rights were unlawfully exercised by Google. These rights are accumulative and may overlap. Paragraph 106 lays down the following:
“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
According to the facts, Google did reproduce, distribute and display copyrighted books without authorisation of the copyright holders or a licence. Google made digital copies of millions of in-copyright books, kept the copies on its servers and backup tapes. Furthermore, Google also made digital copies available to the partners of the Library Project and Google displayed snippets from the books publically. Therefore, it can be concluded this law has been breached by Google. Both parties have not refused these facts. This is the legal basis of the Plaintiffs’ claim. However, the question remains whether the breaches were unlawful.
Google countered the Plaintiffs’ claims by stating that it was fair use. Fair use is a fundamental concept in copyright law of the United States of America. Fair use is a defence to a claim of copyright infringement. According to case law, this concept allows the fair use of in-copyright works in order to “fulfil copyright’s very purpose: to promote the progress of science and useful arts” . Furthermore, case law also points out that copyright law in the US aims at accomplishing this purpose by giving protection to the authors in order to encourage creativity, while simultaneously allowing the usage of copyrighted works to improve the progress of the arts and sciences. This doctrine is laid down in paragraph 107 of the US Code which includes:
“[…] the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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