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

Last Updated: November 2 2015
Article by Jill Jarvis-Tonus and Tamara Céline Winegust

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 fair use purposes and factors contained in § 107 of the Act, Google's activities were fair. In finding for fairness, the Court considered protection of an author's incentive to create balanced against the desire to expand public learning. It took an expansive and liberal approach, finding the primary purpose of copyright was not to protect authors, but to provide for the public:

Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

The Court considered the four fair use factors—the purpose and character of the use; the nature of the work; the amount of the work copied; and the effect of the use upon the potential market for the work. The first and last of these were critical to the outcome.

In regards to the purpose and character of the use, the Court adopted the "transformative use" analysis, first outlined and applied by the United States Supreme Court in Campbell v Acuff-Rose Music, Inc., 510 US 569 (1994) [Acuff-Rose]. This analysis dictates that the more the copied material is used for a new, transformative purpose, the more it enriches public knowledge and the less likely it is to be a substitute for the original work or a derivative. In Google's case, the Court found Google Books' use to be highly transformative since the copying was done to provide otherwise unavailable information about (a) the originals by identifying a potential book of interest to the user, or (b) about the book's content in a broader context.

The distinction between providing information "about" the work, rather than the work itself, was critical to the Court's decision. The Court emphasized that authors cannot obtain protection for facts appearing in their books, but only for the original expression of such facts. Furthermore, copyright and derivative work rights do not extend to licensing digital copies for the purpose of providing such non-expressive content, even where the entire work must be copied/digitized in order to do so.

The amount of Google's copying also weighed in favour of fair use. Although the whole work was copied, only select and minimal portions were actually available for public viewing (i.e., only 16%), and the copy was made solely to enable the search functions to operate. The Court held that the use did not compete with original works in any meaningful way, since only limited portions of the whole were accessible.

A Canadian Perspective

While Canadian and US copyright law share similarities, there are many notable differences, especially regarding "fair use" and "fair dealing". The two concepts diverge in numerous ways that could result in a use being deemed "fair" in one country, but an infringement in the other.

The most notable difference between "fair use" and "fair dealing" is the qualifying test. As outlined in Google Books, the US concept, while contained in § 107 of the Act, reflects a common law doctrine that developed in that country. The purpose for fair use enumerated in that section—criticism, comment, news reporting, teaching, scholarship, or research—are non-exhaustive example of the sorts of copying courts and Congress have found to be fair use. There is no activity specifically excluded from being potentially "fair", given the right circumstances. The "fairness" analysis is the only issue.

Canadian "fair dealing" is more restrictive, and a creature of statute. Before a court can consider whether a dealing is "fair", the complained of activity must fall within one of the allowable purposes enumerated in section 29 of the Copyright Act, RSC 1985, c C-42 (the "Canadian Act"), namely research, private study, education, parody, or satire. Criticism, review, and news reporting are also allowable purposes, provided that the source and author are identified in the use. These qualifying categories limit access to fair dealing in Canada. Although the Supreme Court has given a "large and liberal interpretation" to the categories to ensure users' rights are not unduly constrained, harsh results can occur. For example, until the Copyright Act was amended in 2012, parodies were generally considered infringements in Canada, having been found by some courts not to fit into any enumerated purpose.

A second important difference is whether "transformative use" is used in the analysis. Since the U.S. Supreme Court's decision in Acuff-Rose, whether a particular use is "transformative" has become one of the most important considerations in assessing whether or not a use is "fair". In Canada, however, the courts have not recognized "transformative use" as a characteristic of fair dealing. In fact, it is quite likely that such an argument would bear little weight—the Supreme Court has cautioned against the wholesale adoption of American copyright law, including "transformative use", in Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 [Bell Canada], while the British Columbia Supreme Court in Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196, outright rejected "transformative use" as having any place in Canadian copyright law.

So would the Google Books case have been decided differently in Canada? Not necessarily.

There is a strong argument that a Canadian court, encouraged by the Supreme Court to take a "large and liberal approach" to the permitted use categories, could have found Google Books fits squarely within the allowable purposes of "research" or "private study". Regardless of whether "transformative use" has any traction under Canadian copyright law, the purpose of Google Books was to facilitate such research or private study, including providing users with information that could be used to decide whether to purchase a copy of the work. Furthermore, the relatively small amount of the copy made available to the public, would also have likely weighed in favour of the dealing being fair.

The Supreme Courts' findings in Bell Canada (discussed above) are illustrative. That case had to decide whether service providers giving consumers access to free music "previews" of a work before deciding whether to purchase a copy of the full piece was infringing and, therefore, compensable. In holding that the activity was "fair dealing", the Court found the purpose of providing previews was primarily to facilitate the research purposes of consumers, and that the brevity of the preview was a sufficient safeguard to ensure that the previews were used for research and not a substitution for the work (i.e., only a short segment was available, the preview was not downloadable, and was automatically deleted from the user's computer once the stream of music ended).

Similarly, in Google Books, notwithstanding the Second Circuit's focus on "transformative" use, the underlying purpose of Google Books was to facilitate research through a search function, text mining and analysis.

The impact of the Google Books decision in the United States, and Canada, is yet to be seen, but it could very well effect the costs, practices, and risk assessment analysis associated with database building and text and data mining activities, which are now more likely to be seen as fair—deemed "highly transformative" under US "fair use", and for the purposes of research under Canadian "fair dealing".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jill Jarvis-Tonus
Tamara Céline Winegust
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