Google Books wins ‘fair use’ but Australian copyright lags

Nic Suzor 
The Conversation
15 November 2013

Australia wants to foster innovation in a digital economy, but our copyright laws discourage businesses from investing in new technologies and make it harder for individuals to access the knowledge upon which innovation is based. Yesterday’s US
decision in the Google Books case shows why US copyright law is much more supportive of innovation than ours.

The long, drawn out litigation between the Authors Guild and Google has reached a conclusion: Google’s ambitious mass-digitisation project, to scan the world’s books and make them discoverable online, is “fair use”.

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.

Without fair use, many socially valuable reuses of copyright material would require the explicit permission of the copyright owner in advance. Seeking permission is a real problem; often, it is impossible to track the owner down, because copyright is automatic and lasts for 70-plus years after the author’s death.

Even when the owners can be found, sometimes they refuse to give a licence, or charge a price that is unaffordable. Fair use enables a balance of sorts: it allows people to reuse copyright material in ways that are valuable to society and not too harmful to the copyright owner.

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. Australia doesn’t have “fair use”; instead, we have 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.

Google couldn’t digitise books in Australia; without fair use, it’s not possible to fit innovative new technologies into old, inflexible categories.

Google probably couldn’t even make a search engine in Australia: without fair use, there’s no exception for indexing and searching web pages. YouTube certainly couldn’t have started in Australia: in the US, there are “safe harbours” that protect organisations from copyright infringement claims when their users infringe copyright, as long as there is a notice and take down scheme in place.

Australia’s equivalent is drafted so narrowly that it excludes almost everyone who would want to rely on it.

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