The 2017 Charles Clark lecture on copyright took place at the London Book Fair on Wednesday 15th March. 

It was chaired by Peter Day, the long-serving BBC broadcaster.  The two speakers were both American judges: Judge Pierre Laval, who has served on the US Court of Appeal and is a District Judge for New York and Jon Baumgarten, a US copyright lawyer.  Although the whole of the lecture was about fair use, their exchange was mainly about the 2014 – 2015 appeal by Google against claims of violation of copyright by various publishers and the Association of American Publishers, which Google won.

Pierre Laval hit the nail on the head at the outset when he said that a major advantage of the US approach towards appeals is that it gives judges flexibility; but that this is also a disadvantage.  The whole debate demonstrated this! He said that part of the difficulty in deciding the Google case stemmed from the ‘bifurcated nature of copyright’ – it promotes the enrichment of public knowledge while at the same time it exists to enable authors to make a living from writing.  Some time ago, the English courts accepted that author control could not be absolute, and so the doctrine of fair use was born.  In many instances, fair use doesn’t harm the legitimate rights of authors: for example, when quotation from the work, perhaps in a review, doesn’t limit the author’s ability to earn revenues.  However, the more the author’s exact words are copied and quoted, the more the subsequent work is being offered as a market substitute. The development of digital facilities make this more complicated: in the digital sphere, anything one does involves making a copy; but digital copying can be extremely valuable for information purposes.

Google Books proposed to make digital copies of millions of books without their authors’ permission; but they placed these on the Internet only when they had permission from the rightsholders.  By using search engines, the searcher can find very little direct extract from these books; hence, Judge Laval concluded, Google is not offering substitutes for books.  Searches yield only 2 – 4 lines of text, and only then if the rightsholder allows it.  The extract allows the researcher to see just enough of the book to decide whether it is of interest.  Judge Laval finished by saying that the Google programme gave authors and readers gigantic benefits, but did not seek to produce substitutes of the books: “Google is not an enemy, but a friend”.

Judge Baumgarten began by saying that he didn’t think the publishing community considers fair use to be the enemy: it was the publishing community that chose the concept of fair use with respect to unpublished works.  However, he contended that some of the basic principles of fair use had been undermined by Google Books.  Google was flying a ‘false flag of credibility and authority’.  Ongoing and future mass digitisation projects will use the Google Books Supreme Court ruling (which of course found in favour of Google) as an authority.  “Trade associations must discover, pre-empt and counter them.”

The Google Books ruling was not sui generis, but a ‘one-off’. The requirement to opt out, rather than opt in, to a publication programme turns the law on its head.  It hinders the development of collective licensing. Copyright law is predicated above all else on production rights.  Fair use should not enable unauthorised copying; courts should not discount the harm done by the unauthorised copy. ‘Enterprise copying’ is far outside the sense and spirit of fair use.  There have been other instances in the US where the copying of entire works has taken place, but nothing on the scale of the Google Books initiative. Whether or not the application of fair use was ‘transformative’ was a key issue in the Google case: reproduction rights in American law are conspicuously not founded on a requirement that copies be financially exploited.  Therefore, the ‘no harm’ conclusion in the Google Books case may be unwarranted: Google Books probably did undermine commercial opportunity, even though Google obtained no direct financial gain.

Judge Baumgarten pointed out that Judge Laval agreed that it was necessary to look at what sort of copying was used and whether it interferes with the author’s market.  Rightsholders have an absolute monopoly, according to what the licensing law gives them.

This was a riveting debate, not least because the more persuasive of the two judges – Pierre Laval –  defended the intuitively shakier moral argument.  Most of the audience probable agreed with Judge Baumgarten’s stance; but they went away with a greater understanding of the points of law that enabled Google to win.

A full transcript of the debate is available here.

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