Intermediary copying and the Google Library project

Paul Ganley, Google Book Search: Fair Use, Fair Dealing and the Case for Intermediary Copying, a preprint, self-archived January 13, 2006. (Thanks to William Walsh.)

Abstract: This article examines the legality of Google's Library Project under U.S. and U.K. copyright law. The Library Project provides a useful example of the divergence in approach to copyright exceptions in these two jurisdictions. In particular, whilst Google's plans have generated a great deal of controversy, it at least has an arguable case under U.S. law that its use is fair use. No analogous argument can be made under U.K law. The main purpose of this article is to highlight this distinction and to suggest that U.K copyright law is failing to adequately account for transformations in the mode and manner in which individuals interact with information. Following a brief introduction in part 1, part 2 begins by explaining how Google's 'Book Search' program (formerly 'Google Print') operates and briefly describing the two lawsuits issued against the 'Library Project' aspect of the service by the Author's Guild and a number of prominent publishers. Part 3 offers a preliminary assessment of whether Google's activities are lawful under U.S. copyright law. In attempting to answer this question, Google's 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 can reasonably argue 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 Professor Zittrain's concept of 'generativity' and Professor Frischmann's economic theory of infrastructure. Finally, Part 6 describes how U.K. copyright law could accommodate uses such as Google's 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 is outlined, and alternatively a new defence of 'fair dealing for informational purposes' is proposed.