Analysis of the Standard of Fair Use in Copyright Law – “The Authors Guild, Inc. v. Google Inc” Case

Abstract

These days, many people have an interest in copyright and copyright infringement so it could be a meaningful study to know the copyright law and the restriction of the copyright. The author of works has several rights under ‘Copyright Law’ and the rights are restricted by special provisions and a general provision. This study looked into a general provision, ‘Fair Use’ of Korea and United States. It’s not easy to apply the provision because of its vagueness so, ‘Copyright Law’ of two nations stipulated standards of ‘Fair Use’. In order to understand the criterions, this study examines “The Authors Guild, Inc. v. Google, Inc.” case and annotates the case.

 

. Introduction

These days, many people have interest in copyright and the infringement of copyright. Respecting copyright means that the author shall hold the rights under Articles 11 through 13 and the rights falling under Articles 16 through 22 of ‘Copyright Law’. The former are about the author’s “moral right” such as the right of disclosure, the right of attribution, and the right of integrity, while the latter are about the author’s “property rights” like the right of reproduction, the right of public performance, the right of public transmission, the right of exhibition, the right of distribution, the right of lease, and the right of production of derivative works.

All of these rights are, however, not protected absolutely. Under ‘Copyright Law’, there are several restrictions such as the special provisions and the general provision. The special provisions apply in each case and they are stipulated Article 23 through 35-2[1] on Copyright Law. The general provisions are applied in each case except as provided in Articles 23 through 35-2 and 101-3 through 101-5[2], and it stipulated on Article 35-3 under ‘Copyright Law’. Article 35-3 is about ‘Fair Use of Works’ and it allows a person to use other’s work for the purpose of coverage, criticism, education, or research, etc. when he/she does not unduly harm an author’s legitimate profits without conflicting with the usual method of using the work.[3]

‘Fair Use of works’ is the important concept to reconcile the rights of authors and the purpose of ‘Copyright Law’, which is the improvement and development of culture and related industries. Nevertheless, ‘Fair Use’ is vague to be applied to real cases without more specific standards, so it is necessary to analyze the standards of this term. For this reason, this study analyzes the standards of ‘Fair Use’ through “The Authors Guild, Inc. v. Google Inc” case.

 

. The Form of ‘Fair Use’ Provided by Copyright Law of Korea and Copyright Law of the United States

 

  1. ‘Fair Use’ under Copyright Law of Korea

As mentioned above, Article 35-3 (1) of ‘Copyright Law’ allows a person to use other’s work for the purpose of coverage, criticism, education, or research, etc. when he/she does not unduly harm an author’s legitimate profits without conflicting with the usual method of using works, etc[4]. Also, Article 35-3 (2) stipulates the criterion to determine whether an act of a user conforms to Article 35-3 (1). The criterion is comprised of the purpose and characters of use, types and uses of works, the proportions of used parts in the entire works, their importance, and the influence of the use of the work over the current market, value, potential market or value of such works, etc[5]. A full provision of Article 35 is as follows:

 

Article 35-3 (Fair Use of Works, etc)

(1) Except as provided in Articles 23 through 35-2 and 101-3 through 101-5, where a person does not unduly harm an author’s legitimate profits without conflicting with the usual method of using works, etc., he/she may use such work for the purposes of coverage, criticism, education, or research, etc.

(2) In determining whether an act of using works, etc. falls under paragraph (1), the following matters shall be considered:

1. Purposes and characters of use, such as for-profit or non-profit;

2. Types and uses of works;

3. Proportions of used parts in the entire works, etc. and their importance;

4. Influence of the use of works, etc. over the current market or value or potential market or value of such works, etc.

 

  1. ‘Fair Use’ under Copyright Law of the United States

The provision of sections 107 allows the fair use of a copyrighted work, including such use as by reproduction in copies, phonorecords 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, and the fair use is not an infringement of copyright. Moreover, the standard to determine whether a use of a copyrighted work is fair use or not is prescribed by Article 107[6]. The criterion is comprised of the purpose and character of the use, including whether such use is of a commercial nature, whether it is for nonprofit educational purpose, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copy righted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. A full provision of Article 107 is as follows:

 

Article 107 (Limitations on exclusive rights : Fair use)

Notwithstanding the provisions of sections 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords 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 nonprofit educational purposes,

2. The nature of the copyrighted work,

3. The amount and substantiality of the portion used in relation to the copy righted work as a whole, and 4. The effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

  1. Comparison and Assessment

The concept of ‘fair use’ is ambiguous, so ‘Copyright Law’ of Korea and ‘Copyright Law’ of the United States stipulate more specific standards. Each criterion of ‘fair use’ is quite similar because “the provision of ‘fair use’ was enacted through case in 1976 in the United States and it was enacted in 2011 in Korea”[7]. The result of comparison of those two articles is presented in the table below:

 

‘Copyright Law’ of Korea

Article 35-3 (2)

(Fair Use of Works, etc)

‘Copyright Law’ of the United States

Article 107

(Limitations on exclusive rights : Fair use)

1. Purposes and characters of use, such as for-profit or non-profit;

2. Types and uses of works, etc.;

3. Proportions of used parts in the entire works, etc. and their importance;

4. Influence of the use of works, etc. over the current market or value or potential market or value of such works, etc.

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 copy righted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

 

The standard of ‘fair use’ under the Copyright Laws of Korea and United States could be summarized into four: ① the purpose and character of the use; ② the nature or types and use of copyrighted works; ③ the proportion and substantiality of the copy righted work which is used; and ④ the effect of the use over the current or potential market or value of the copyrighted work. These criteria can be easily understood through a case review, so this study would examine “The Authors Guild, Inc. v. Google, Inc.” case.

 

. “The Authors Guild, Inc. v. Google, Inc.” Case – 2013 WL 6017130 (S.D.N.Y. Nov. 14, 2013)[8]

  1. Factual Aspect

In 2004, Google made a public statement particularly about two digital books programs. The first one is called “Google Print” and it was renamed the “Partner Program”, which includes the “hosting” and the display of materials provided by book publishers or other rights holders. The second thing is the “Library Project,” and it included the digital scanning of books in the collections of the New York Public Library, the Library of Congress, and a number of university libraries.

Plaintiffs alleged that “Google committed an infringement of copyright by scanning copyrighted books and making them available for search without the permission of the copyright holders” on September 20, 2005.

That plaintiffs were composed of Jim Bouton, who is the legal or beneficial owner of the U.S. copyright in the book 『Ball Four』, Betty Miles, who is the legal or beneficial owner of the U.S. copyright in the book 『The Trouble with Thirteen』 and Joseph Goulden, who is the legal and the beneficial owner of the U.S. copyright in the book 『The Superlawyers』. All those three books were scanned by Google and they are all made available for search on Google’s website, without the plaintiffs’ permission. Also, the Authors Guild, Inc., who is the nation’s largest organization of published authors and advocates for the copyright and contractual interests of published writers, was another plaintiff.

After consistent and comprehensive negotiations between the two parties, they entered into a settlement solving the problems. However the court issued an opinion rejecting the proposed settlement because the settlement was not fair, nor adequate, nor reasonable on March 22, 2011. After this rejection of the court, two parties took legal proceedings.

 

  1. Summary of Judgment

(1) Purpose and Character of Use

The first factor to see whether there has been an infringement of copyright or not is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

Google’s use of copyrighted works transforms books into e-books or databases. The Court said that it means “Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.” So, Google Books has a major effect on libraries, librarians and cite-checkers because it helps them identifying and finding books. Also, Google Books facilitates easy search for when a user have snippets of information, and it made a new way to use books which is that the frequency of words and trends in their usage provide substantive information. Furthermore, according to the court, “Google Books does not supplant books because it is not a tool to be used to read books in , it ‘adds value to the original’ and allows for ‘the creation of new information, new aesthetics, new insights and understandings.’”

In addition, Google does not sell the scans or snippets that they had made out of several books or they had displayed for users. Also, it does not run ads on the site that displayed such snippets or scans of books. It means that Google Books does not use the scans in direct commercialization and Google Books works in educational purposes.

 

(2) Nature of Copyrighted Works

The second factor to see whether there has been an infringement of copyright or not is “the nature of the copyrighted work.”

If the works are books, all types of published books such as fiction and non-fiction, in-print and out-of-print could be included, while fiction works are entitled to greater copyright protection than non-fiction works, because fiction works have more creativity of authors.

In this case, the vast majority of the books were non-fiction so copyright protection would not be extensive. Further, most of the books in this case were published and made available to the public. These considerations effected on conceding fair use of Google books.

 

(3) Amount and Substantiality of Portion Used

The third factor that decides whether there has been an infringement of copyright or not is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

Google scanned the entire books and copied the expressions as they were. And Google Books offered all full-text searching of books, and this reproduction is critical to the service that Google Books offers. However, courts said that “copying the entirety of a work may still be fair use because Google limits the amount of text when it displays in response to a search.”

(4) Effect of Use upon Potential Market or Value

The fourth factor to decide whether there has been an infringement of copyright or not is “the effect of the use upon the potential market for or value of the copyrighted work.”

The court judged Google Books has a good effect on the potential market or value of the copyrighted works. There are three reasons for this judgment: the first reason is that “Google does not sell its scans, and the scans do not replace the books”; the second reason is that “partner libraries have the ability to download a scan of a book from their collections and they owned the books already so they could provide the original book to Google to scan.”; and the third one is that no one would like to “take the time and energy to input countless searches to try and get enough snippets to comprise an entire book”

Also, Google Books makes buying books more attractive or more valuable, so the sales of books are improved and it benefits the copyright holders. Moreover, Google Books makes authors’ works to gain notices, and many authors have noted thanks to Google Books. In addition, both librarians and patrons use Google Books to recognize the books and understand exactly what it is for their purchase. This situation can show that Google Books improves book sales and Google Books effects on the potential market for more positive value of the copyrighted work.

 

(5) Overall Assessment

Google Books functions as a “research tool” that allows students, teachers, librarians, and others to identify and locate books more easily. It also permits scholars to conduct full-text searches of tens of millions of books. Furthermore, it preserves books such as ‘out-of-print’ and ‘old’ books that have been forgotten by people and libraries. According to the court, Google Books “facilitates access to books for print-disabled and remote or underserved populations and it also generates new audiences and creates new sources of income for authors and publishers.” So courts judged that the use of Google Books is ‘fair use’ in Copyright Law, because all society benefits from Google Books.

 

  1. Conclusion of Case

The decision was made in favor of the Google. “The plaintiffs’ motion for partial summary judgment is denied and Google’s motion for summary judgment is granted. Judgment will be entered in favor of Google dismissing the Complaint.”[9]

 

. Assessment of the Case

 

This case settled the standards to determine whether the use of someone else’s work in any particular situation is a fair use or not. It also explains the standards in an exact and detailed way: the first factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” ; the second factor is “the nature of the copyrighted work.” If the works are books, all types of published books, fiction and non-fiction, in-print and out-of-print could be included and works of fiction are entitled to greater copyright protection ; the third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”; and the fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.”[10]

Furthermore, the United States District Court, S.D. New York Court, made clear how to apply those criteria to a particular case. Regarding the first factor, the court first considered whether Google Books is the tool to be used to read books or not and then whether they sold the scans that they made or not. And if the use served important educational purpose, it can be a ‘fair use’. Concerning the second factor, the court considered the types of works at stake and whether the works were published and made available to the public. Then the court took ‘the amount of text displayed in respond to search’ into account with the third factor. If one party limits the amount of text, it can be considered in a good way. Finally, the court weighed when Google Books sold the scans of books whether it replaced the books or improved books sales, taking the fourth factor into consideration.

But the decision, which was made in favor of Google, could affect the market where only few portal sites govern the Internet environment. The main problem was that, after the protection period of author’s property right or after being out of printing a book, Google Books could claim right of those works because of their efforts like scanning copyrighted books and making them available for search, even without a permission of the copyright holders. And it could be unfair if Google Books provides their service with service charge after the protection period of the author’s property right.

According to Hangwu Lee[11], a professor of sociology in Chungbuk University:

there are concerns about ‘Google Books’ because, if a book is no longer being published or if no one can find the author of a copyrighted book, Google can monopolize rights of that books. Google Books can play an important role to make a new sunrise industry to sell books that doesn’t mature the protection period of author’s property right, but are out of print. However, in this situation, Google Books couldn’t grant more access to the information of books to the public.”

For these reasons, this decision of the court affects a lot of people or things in an important way, especially while few portal sites operate large Internet search engines in the world or in particular nations.

 

. Conclusion

As discussed above, a creator has several rights under ‘Copyright Law’ and the rights are restricted by special provisions as well as a general provision. This study looked into the general provision, the term ‘Fair Use’ of Korea and United States. It’s not easy to apply this provision because of its vagueness, so the ‘Copyright Laws’ of two nations stipulated specified standards of ‘Fair Use’. In order to understand the criteria, this study examines “The Authors Guild, Inc. v. Google, Inc.” case. This case ascertains the way to determine whether a use of copyrighted works is ‘Fair Use’ or not.

“The Authors Guild, Inc. v. Google, Inc.” case is good enough for users at present, but it’s not for sure that it’ll stay that way for users after Google Books has become an owner of scanned files of books. Thus, it is important to know how to apply the criteria of ‘Fair Use’ in this case and think thoroughly about our Internet environment and the copyright.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

  1. Base Element (Act and Case)
  • Copyright Law of Korea
  • Unites States Copyright Act
  • Westlaw, case, Authors Guild, Inc. v. Google Inc, 2013 WL 6017130 (S.D.N.Y. Nov. 14, 2013)

 

  1. Book
  • Yoon Jong Su/Yoo Hyung Suk/Park Joo Jhong/ Chang Eun Ik/Kim Si Yoel/Yang Yoeng Hwa/Lee Seoung Hun, The Kind Copyright Law, Book Space (2012)
  • Trend of Copyright / Korea Copyright Commission (2013)
  1. Site
  • Korea Legislation Research Institute

http://elaw.klri.re.kr/kor_service/main.do

 

 

[1] Article 23 (Reproduction for Judicial Proceedings, etc.)

Article 24 (Use of Political Speech, etc.)

Article 25 (Use for Purpose of School Education)

Article 26 (Use for Current News Reporting)

Article 27 (Reproduction, etc. of Current News Articles or Editorials)

Article 28 (Quotation from Works Made Public)

Article 29 (Public Performance and Broadcasting for Non-Profit Purposes)

Article 30 (Reproduction for Private Use)

Article 31 (Reproductions, etc. in Libraries, etc.)

Article 32 (Reproduction for Examination Questions)

Article 33 (Reproduction, etc. for Visually Handicapped, etc.)

Article 34 (Temporary Sound or Video Recordings by Broadcasting Service Providers)

Article 35 (Exhibition or Reproduction of Works of Art, etc.)

Article 35-2 (Temporary Reproduction in Course of Using Works, etc.)

[2] Article 101-3 (Restrictions on Author’s Property Right of Program)

Article 101-4 (Reverse Engineering of Program Codes)

Article 101-5 (Reproduction for Storage by Lawful Users)

[3] Article 35-3, Copyright Law, Korea

[4] ibid

[5] ibid

[6] Article 107, Copyright Law, The United States.

[7] Yoon Jong Su/Yoo Hyung Suk/Park Joo Jhong/ Chang Eun Ik/Kim Si Yoel/Yang Yoeng Hwa/Lee Seoung Hun, The Kind Copyright Law, Book Space (2012), at 88

[8] Westlaw, case, Authors Guild, Inc. v. Google Inc, 2013 WL 6017130 (S.D.N.Y. Nov. 14, 2013)

http://international.westlaw.com.access.ewha.ac.kr/find/default.wl?cite=2013+WL+6017130&rs=WLIN13.10&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&sp=ewhawomens-04&fn=_top&mt=TabTemplate1&sv=Split (last visited January 2, 2014)

[9] ibid

[10] ibid

[11] Lee Hang Wu, Google Contest Copyright, Money Today Comment, (2013)

http://www.mt.co.kr/view/mtview.php?type=1&no=2013122018484508059&outlink=1

(last visited January 8, 2014)

 

dreamtree87@gmail.com

Posted in Spring 2014.