Friday, September 23, 2005
On Cyberprof, several US law profs argued persuasively that Google had "fair use" on their side; in Europe where fair use/dealing exemptions are very tight under the Copyright Directives, this seems highly unlikely. To be non technical, the policy question is really whether you think what Google is doing is more like making an entire copy of an MP3 without permission of the owner (clearly illegal) or more like looking up an index or digest to find extended references to useful texts (clearly legal.)
I was slightly amazed (and pleased) the first time I looked to find the whole of my own chapter on legal regulation of CCTV in the UK was available (from a book published by Asser Press) . Today, that chapter is no longer there, and two other book chapters of mine (with Kluwer) deliver only 2-3 page snippets. This seems either to be down to a damage mitigation stategy by Google to placate the publishers, or a closing of ranks by the publishers against Google, since one assumes Asser had already given permission to reproduction of the whole book in question, before the GP issue hit the fan.
My own feeling is that, as with the P2P wars, after a certain amount of legal skirmishing, eventually we will see this kind of global library full-text look-up-and-download being accepted by the rightsholders, but only when some mechanism is in place to get a royalty back to the publishers, by some kind of levy or license fee eventually charged against consumers. Cf the transition from illegal Napster to legal Napster, where you buy £10 a month to stream as much music as you like, and the record companies involved in contracts with Napster get their share. One of the arguments being thrown around in favour of Google is that GP is helping raise interest in out of print and back-list books which make little or no money for publishers, so why are the publishers suing?. But publishers must surely be waking up to the fact that that back list can become valuable very easily in a world of universal digital download of text. Google have tried it on, methinks, trying to get to offer this service without paying anything for it.
Lessig argues that as Google already makes copies of every text it spiders in order to deliver search results, finding GP illegal is the same as finding Google the search engine illegal for breach of copyright, and common sense revolts at this idea. But this is not necessarily true, as most jurisdictions now have exemptions allowing for the making of transient rather than permanent copies for "technical reasons". Search engines may reply on thse rather than "fair use" to protest their legality. The question is if such exemptions, mainly tailored to legalise caching, are phrased widely enough to cover what search engines do, and how transient Google's spider copies are. Copies are retained for days, sometimes weeks in Google's cache - can these really be regarded as transient?
In any case, in the UK, The Copyright and Related Rights Regulations 2003 implement the "temporary acts of reproduction" exception provided for in Article 5(1) of the Copyright Directive by inserting a new Section 28A into the 1988 Act, as follows:
"Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable -
(a) a transmission of the work in a network between third parties by an intermediary; or
(b) a lawful use of the work;
and which has no independent economic significance.".
Google search engine would fail to get the benefit of this under (a) for sure. And the "economic significance" is also arguable - Google don't get paid for GP, but they do make money out of adverts on the main search site, depending how many people click through on advert links placed next to searches. But (b) is the heart of the argument in Google Print.So it may all, in fact, come back to fair use/fair dealing. We in Europe may need to revisit these exemptions yet again.
The point is a difficult one in terms of policy. Microsoft (and Yahoo! who a few weeks back revealed the identity of a blogger to Chinese authorities, probably exposing him to criminal penalties) are criticised for supporting censorship contrary to Western norms which they benefit from in their own home countries. But such companies can also argue that to maintain a base in these countries they have to work by local laws, and that withdrawing would merely reduce the positive importation of e-commerce prosperity and the overall impact of the Net on these countries. It is a case perhaps of medicine today, to have jam tomorrow.
Wednesday, September 21, 2005
This blog is directed towards the students in the LLM in Information Technology and the Law (both on campus and distance learning). It is not obligatory work, and it does not constitute assessment in class. The opinions expressed here are not necessarily those of the AHRC Centre.
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