Topics: Copyright, United States copyright law, Fair use Pages: 22 (7888 words) Published: April 17, 2013
computer law & security report 24 (2008) 253–260

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Copyright, Google and the digitization of libraries

Armageddon on the digital superhighway: Will Google’s e-library project weather the storm? Akhil Prasad, Aditi Agarwala
Gujarat National Law University, India

This paper examines the concept of copyright as an intellectual property in the digital age and the utilitarian objective which an intellectual property seeks to achieve. In that respect ‘fair use’ as a concept of U.S. copyright law has been critically analysed. An ongoing Court battle involving the dispute between Google and the Author’s Guild & Publishers has been examined and an attempt has been made to justify the act of Google under the fair use doctrine. At the heart of the work, one shall be able to appreciate the pressing need for the copyright laws to be rewritten for the digital age. Recourse has been made to numerous case law to appreciate the concept of fair use and this paper concludes by holding Google’s project of digitizing copyrighted books as ‘fair’ as it fulfills the primary aim of copyright law which is ‘‘encouragement of learning’’ and ‘‘dissemination of knowledge’’. ª 2008 Akhil Prasad & Aditi Agarwala. Published by Elsevier Ltd. All rights reserved.


Copyright – A stimulus to creativity

Innovation and creativity are the tools to climb the progressive ladder of humanity. It is not only to be encouraged by allowing the intellectual mind to reap the fruits of his labor through trade and commerce but also prevent his loss/detriment by prohibiting unauthorized and unscrupulous persons or entities to unjustly enrich their pockets. This can be done through sales on the sly or, enhancing their reputation or marketability of the work under their hand, by lifting the copyrighted material and incorporating/merging it in their own without the permission of the author, often minus any acknowledgement and with the intent to improve or increase the marketability. Copyright encourages the creative efforts of authors, artists, and others by securing the exclusive right to reproduce works and derive income from them. The copyright law embarked as a codified body of law when the Statute of Anne received the assent of the British Parliament in 1710. The very nature and purpose of the statute

was twofold: the first to promote learning or dissemination of knowledge1 and the second, to prevent any other person, save the author, to print or reprint the literary work for a limited duration. The most important part in terms of relevancy to the subject matter of this article is perhaps the fifth clause of Anne’s statute which mandated that ‘nine’ copies of each book, shall be kept in nine libraries (one copy each), of the stated Universities therein for the purposes of accessibility and dissemination of knowledge to the public at large thus promoting literacy and thereby social good, and a stringent monetary penalty was attached, in case of noncompliance of the aforementioned clause. The statute also envisaged a formal system of price control and redress mechanism as well. Thus, it is observed that at the time when the foundation of the modern copyright law was being laid down, the legislative intent was to further or promote dissemination of knowledge but at the same time the private right of the author was being respected and protected. In essence, it

1 The Preamble to the Statute of Anne, 1710 is worded as ‘‘An Act for the Encouragement of Learning’’. 0267-3649/$ – see front matter ª 2008 Akhil Prasad & Aditi Agarwala. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.clsr.2008.01.002


computer law & security report 24 (2008) 253–260

was a fine balancing act in which the author’s right was secured and at the same time, his right was not impeding the ‘encouragement of learning.’ The centuries old common law statute continues to...
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