Google Books Held 'Fair Use' In The U.S. — But Would It Also Be 'Fair Dealing' In Canada?

By affirming that Google Books is fair use under the United States Copyright Act (the "Act"), the United States Court of Appeals for the Second Circuit in Authors Guild v Google Inc., (2d Cir) Docket no. 13-4829-cv (October 16, 2015) may have closed the door on a decade-long battle between the search engine giant and the Authors' Guild (barring an appeal to the U.S. Supreme Court). The Court found that Google's project—which entails the digitization of whole books—was highly transformative, and its purpose and function did not supplant the market for the original work. Further, Google Books significantly contributed to the expansion of public knowledge and understanding—a fundamental purpose of copyright. The decision is a strong affirmation of fair use and may allow businesses to take greater advantage of that copyright doctrine when dealing with facts, research, and information aggregation and analysis. The decision should also be of particular interest to Canadians, whose uses of copyright works are subject to a different, but recently evolving, "fair dealing" analysis.

The Google Books Decision

The Google Books project, and a related Google Library project, began in 2004. It resulted in Google scanning, rendering machine-readable, and indexing more than 20 million books that are both in and out of copyright. The public can search the Google Books database and obtain (a) information about the book, including the number of times their search term appears in the book; (b) a "snippet"—about 1/8th of a page—from the book that includes the search term; and (c) through the "ngrams" function, statistical information about the frequency of word and phrase usage over time. Libraries that have requested Google scan their books can also access digital copies of entire books.

In 2005, the Author's Guild, representing the interests of American authors, launched a class action lawsuit against Google, alleging the Google Books project infringed copyright in the books it scanned and made available for searching, and also the author's derivative work rights to make their books available for searching. After four amended class action complaints and a rejected class settlement, Google brought a motion for summary judgement on the fair use defence. The district court granted summary judgement in favour of Google in November 2013, which the Second Circuit affirmed on October 16, 2015.

The decision turned on whether, after consideration of the illustrative...