Copyright issues in online libraries

Imagine all literary and academic publications and all forms of books, periodicals and articles on every conceivable topic in the world available to everyone at the click of a button. All published books would be preserved for eternity—not in a physical form or in a musty, remote library, but in digital format for the world to access at any time from any place. The objective is commendable and the task, mammoth. Should such a plan be successful though, it would make all knowledge available to everyone regardless of their status.

With this objective, several players in the online market have attempted to create online libraries by using digital optical character recognition technology, which enables them to not just scan books in the form of an image but also to catalogue the books and make their text searchable by terms or keywords.

Admirable as the task is, it is plagued with obstacles, such as language barriers, the complex task of cataloguing millions of books, anti-competitive allegations, privacy concerns and, most importantly, copyright infringement issues.

It is important to understand that most of these projects—the Google Books Library Project, the abandoned Microsoft Live Search Books initiative, Europeana, Gallica, etc.—rely primarily on two sources for their book collections. The first, and probably the most important, is through collaborations with libraries, while the second is through collaborations with publishers and individual authors.

Take Google, for example. It has collaborated with several libraries with huge collections in its Library Project and with several authors and publishers in its Partner Programme. Through both these sources, Google recently claimed to have scanned more than 10 million books. In comparison, Microsoft scanned about 750,000 books through its now defunct Live Search initiative. These projects aim to provide web users with ‘e-versions’ of books in the public domain and in copyright.

In order to understand the copyright infringement issues raised by these projects, it is important to understand the kinds of books made available and the extent to which they are made available. Primarily, the books are already in the public domain and the use of these books by online libraries for full public viewing is not merely allowed, but is a right.

In the case of copyright-protected books, when they reach the online library for digitisation and online publication through the publishers or the authors or owners of copyright in the work, there may be no issue of copyright infringement. In the case of Google’s Partner Programme, participating publishers and authors voluntarily scan (or allow Google to scan) their books and make them available online. In such cases, the rights owners are themselves seeking wider viewership and issues of copyright rarely arise.

The issue of copyright infringement can arise when a book is scanned and made available to the public over the Internet while it is within its period of copyright protection. This happens, in most cases, through the collaboration of online libraries with various physical libraries. It is in such circumstances that authors and publishers object to the use of digitised versions of their copyright-protected books.

Traditionally, libraries lend books to their patrons based on the doctrine of ‘fair use’ or ‘fair dealing’. It is immaterial whether or not the library charges its patrons a fee. The same principle applies to publicly funded libraries, which lend books to readers for free.

The doctrine of ‘first sale’, which allows the copyright owner to control only the first sale of the work, is also important. In the case of libraries, legitimately produced copies of the work are purchased and, thereafter, lending remains beyond the scope of the copyright owner.

However, the authority of a library is limited to lending the work to its patrons only. The right to reproduce the work, sell it or convert it to digital format remains with the copyright owner, and libraries infringe these rights if they perform any of these activities. It is no wonder that the digitisation of books has raised the hackles of the publishing industry.

While there is no debate around limiting the use of copyright-protected works by traditional libraries, it could be argued that making digital versions of books available on the Internet is a fair use. Assuming that the courts consider this a fair use, there is still the question of whether a library can allow an entire piece of copyright-protected work to be digitised and made available on the Internet.

One may be pushing the envelope of fair use when a copyright-protected work is made available in its entirety to the general public with no compensation whatsoever to the author or rights holder.

In addition to the sources of books, there is also the question of the extent to which books are made available. As stated earlier, the online library is free to provide public domain works in any manner and to any extent to the public. However, with regard to the ‘in copyright’ material, there can be no doubt that making available such works to the public, and in full, would constitute infringement if there is no permission from the owners of the copyright.

However, Google has stated that it intends to scan the work and make only relevant ‘snippets’ available to the public via a search. This will give the public the right to merely ‘flip’ through the book as one might at a book store and then decide whether to purchase the work. The counterargument is that when previews of books are made available online on websites that sell books, such as amazon.com, for every view of the snippet, the owner of the copyright is paid. Online libraries will not be in a position to do that.

In addition, authors will not be able to control the extent of the preview that the library provides. Since the library will scan, store and catalogue the entire book, authors will have no control over which portions of the book are made available. In effect, the entire book will be searchable by appropriate keywords. Therefore, the potential for ‘pirated’ versions becomes much greater.

Online libraries argue that their role is limited to maintaining a catalogue of books similar to a card catalogue available at physical libraries, which can barely be regarded as infringing. Moreover, online libraries state that it would be beneficial for rights owners to be able to reach out to a wider audience, not restricted by geography or market conditions.

Online libraries rely on the fair use or fair dealing arguments allowed in copyright law to defend the availability of ‘limited previews’ or ‘snippet views’ of copyrighted works. There are certain classes of use that are often regarded as fair and non-infringing. These include use of the work for teaching purposes, for research, and for social and cultural programmes with no commercial objectives.

However, this is a question of law that can only be determined by a court. Assuming that a court finds that the use is ‘fair’, there is also the commercial aspect of online libraries to consider. Google, for example, will benefit greatly from the sale of advertising space in relation to the books. Whether the courts see this as fair use will also depend largely on the kind of work available, and it may be impractical to make a generalised statement on this point.

It may also be difficult to predict the outcome of any judicial process in light of the fact that in two cases, almost a decade apart, the courts came to different conclusions as to whether the use of a new technology is infringing or not. In the early 1980s, with the advent of video cassette recorders, it became possible to record television programmes.

In a suit by television networks against Sony Electronics, the court said that since recording was for storage and to enable viewing at a different time, it did not amount to infringement if the purpose of the recording was private use. The court found that the technology enabled ‘time shifting’ of viewing, and there was no infringement.

In another case a decade later, the music industry sued various websites and software providers that were allowing users to convert tape-recorded audio recordings to CDs. In these cases, the courts were hesitant to allow the continued use, citing infringement, particularly in view of the fact that the same audio was available to customers in the form of new CDs.

Suits have been filed against online libraries, in particular Google, by authors and publishers, who claim that the provision of their copyright-protected books, particularly those that are in print and in circulation, would be to their disadvantage and infringes their copyright. It appears that Google has chosen to settle the matter with the copyright owners. The court is now considering a revised settlement.

Google has stated that it will create a fund to allow copyright holders to be reasonably compensated for their works. In addition, Google will share with copyright holders almost half of the revenue from sales of e-books and half of the advertising revenues. It will also create an interface by which owners of copyright will be able to claim ownership of their works that are available online in order to benefit from their copyright.

While the settlement, which runs into hundreds of pages, is yet to be approved by the court and implemented in all respects, it does seem to provide an answer to an issue that has pitted the traditional concept of copyright with the advancement of technology and democratisation of knowledge.

This settlement has the potential to serve as a guide for future development of online libraries and ensure due returns to rights owners. It may still be premature to judge the practicality and usefulness of the settlement, but it does seem that the future will see several changes, due to the inherent benefit to society that such projects promise.

Rahul Chaudhry is a partner at Lall Lahiri & Salhotra. He can be contacted at: rahul@lls.in