LawFont.com

In December 2004, Google announced its Library Project — an initiative to index the book collections of Harvard, the University of Michigan, Stanford, Oxford, and the New York Public Library, and make their content searchable online. As with all things interesting to do with the Net and intellectual property, this project has not been uncontroversial.

As expressed by the folks at Google Print:

This project’s aim is simple: make it easier to find relevant books. We hope to guide more users to books – specifically books they might not be able to find any other way – all while carefully respecting authors’ and publishers’ copyrights. Our ultimate goal is to work with publishers and libraries to create a comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers find new readers.

Users accessing the database from countries in which particular books have fallen out of copyright will have free rein of the scanned text. However, where the work is still protected by copyright, users will only have limited access to excerpts of those works. In those cases, Google Print will give users information on where they can find a physical copy of the book, whether at a library or through particular booksellers.

As recently reported by Wired, there has been some controversy surrounding the publications still in copyright:

Google has unilaterally set this rule: Publishers can tell it which books not to scan at all, similar to how website owners can request to be left out of search engine indexes. In August, the company halted the scanning of copyright books until Nov. 1, saying it wanted to give publishers time to compile their lists.

Some publishers have called this rule “backwards”, saying that the burden should not be on publishers to identify which books they do not wish scanned. While sympathetic with the publishers’ dilemma, I’d like to point out that Google is giving users access to only small excerpts of copyright-protected works. What excerpts a user sees depends on the search terms used to find the work. Moreover, the publishers stand to benefit from the database, through a cut from related advertising and, if the user decides to purchase the title, from book sales.

From a legal perspective, whether or not Google will be able to continue with this project depends on whether it falls within the “fair use” provisions of copyright law. There is a strong case that posting limted excerpts falls within the concept of fair use. But does scanning the entire work (so that excerpts may be provided) also qualify? Then there is the problem that not all countries, and not even all common law countries, have a broad concept of fair use. In Australia, exceptions to copryight protection exist in the form of narrow “fair dealing” provisions; while a broad fair use provision is being considered, it is not law.