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How do you measure fairness?

02 February 2016 Sinal Govender, Norton Rose Fulbright
Sinal Govender, an IP lawyer at Norton Rose Fulbright.

Sinal Govender, an IP lawyer at Norton Rose Fulbright.

In the 21st century, digital content has become a widely sought after commodity. Naturally, those able to control the largest piece of the proverbial pie are setting themselves up to consume significant commercial rewards.

As technology develops, the ease with which digital content can be reproduced grows exponentially. This growth, however, creates the ultimate conundrum. On one hand, information is now more widely available and accessible than ever before. On the other hand, copyright holders are scrambling to guard themselves from the unauthorised use and exploitation of their copyright-protected works without compensation. Solving this conundrum involves an intricate balancing act between the educational and public benefits of this new found access to information, and protecting the commercial interests of copyright holders. The difficulty is this – how do you measure fairness?

The concept of fair use, which has had a lengthy and muddled history, has been thrown into the spotlight over the past decade, as the Authors Guild relentlessly continues to take on the Google Books project. Although the Authors Guild has gone down fighting in two US courts already, it boldly petitioned the US Supreme Court on December 31, 2015 to appeal the findings of the lower courts.

In essence, the Authors Guild is objecting to the Google Books project where Google has allegedly scanned over 20 million books (sourced from various libraries) and loaded them onto its online database. The Authors Guild has alleged that over 4 million of these books are still subject to copyright, and that the authors are entitled to payment for the reproduction of their works onto Google’s database.

Provided certain criteria are met, copyright law usually prohibits the unauthorised reproduction of copyright-protected works. As with most things in life, there are exceptions to this rule and most of the exceptions come down to the “fairness” of the unauthorised use. Google has argued that its use of the copyright-protected books falls under the fair use defence.

Across the world, the concept of fair use has always been a difficult one to grapple with. The difficulty largely lies in the fact that, although many local copyright laws acknowledge the need to provide for fair use of copyright-protected works in limited circumstances; the legislation does not take enough steps to define these exceptions. In South Africa, for example, the Copyright Act states that copyright will not be infringed by any “fair dealing”. The relevant section then goes on to list things such as criticism, private study, and quotations where the quoted content is minimal and the author is recognised. South African courts have rarely had an opportunity to apply these provisions in practice, and, when they do; foreign case law is quickly approached for guidance. The go-to-guys are, of course, the European and US courts.

The US courts have developed a four pillar test in assessing whether or not fair use is at play. This test looks at the following: the purpose and character of the use; the nature of the copyright work; the amount and substantiality of the portion taken; and the effect upon the potential market. In the US, the exceptions have generally been understood to include the use of copyright-protected works for the purpose of education, criticism, and parody.

In coming to the conclusion that Google’s use of the books have been in accordance with fair use, the US courts have, so far, emphasised the public benefit of establishing what Google has coined “an online card catalogue” of books. The courts have also drawn attention to the fact that, of the books still subject to copyright, only a small portion of their content is publicly available on Google Books. The courts have held that these “snippets” do not pose any significant harm to the value of the copyright, given that they usually only amount to a small percentage of the total content. That small percentage may, however, be exactly what users are after and, in turn, avoid the need to purchase the entire book.

The educational and public benefit of having access to a resource like Google Books cannot be understated. But, the rationale behind providing copyright protection to authors (and other creative minds) cannot be undermined. Copyright protection provides a valuable incentive for authors to create new works. Significant research, time and effort go into creating these works, and interested persons pay for the licence to gain access to the information contained between the covers of those books. The idea that authors can generate an income off these licences incentivises authors to create further works, and in turn benefits the public even more.

The Authors Guild has not objected to the principle of an online platform like Google Books. In fact, the principle behind the project has been widely applauded. The Authors Guild has, however, stressed that the authors of the books still subject to copyright should be compensated, specifically taking into account the commercial benefit that Google stands to gain in directing an overwhelming amount of traffic to its Google Books platform without having to compensate the authors of the content that users are after.

There are several reasons behind the Authors Guild’s resilience in taking on Google. The most prominent of these are arguably that floodgates may open if the US Supreme Court upholds the decisions of the two lower courts, and the knock-on effect that will have on the creative industry.

The French novelist Alain-Rene Lesage once said: “fairness is such a valuable thing, that no money can buy it”. As the world waits to see how the US Supreme Court tackles this latest conundrum, one cannot help but wonder if Mr Lesage’s words will still be applicable.

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