By Craig Gipson and Brian Flagler
The Authors Guild continues to fight but the argument over electronically scanning copyrighted works for archival purposes may be all but over. In a case similar to the Google Books decision [Nov. 2013 ECPA Publishers Legal Update], a federal appellate court influential in copyright matters ruled that the fair use doctrine protected HaithiTrust’s efforts to create a searchable full-text database of works in copyright.
The HaithiTrust is a research library collective from several universities. In 2008, the libraries agreed to allow Google to electronically scan the books in their collections, resulting in a massive repository of books capable of being indexed and searched. In 2011 a group of authors and The Authors Guild sued the , claiming its unauthorized scans constituted copyright infringement. A year later, a federal district court ruled in favor of HaithiTrust [Oct. 2012 ECPA Publishers Legal Update].
The appellate court agreed with earlier court decisions that the creation of digital databases was “a quintessentially transformative use” that, in the words of the district court, was “an invaluable contribution to the progress of science and cultivation of the arts.” The Authors Guild argued that the use was not transformative, but instead it jeopardized any market authors may have to license their works for digital search. The court dismissed the argument as a misunderstanding of fair use: as a “transformative use,” the court discounted any claim of potential economic harm to the copyright owners because a transformative use does not serve as a substitute for the original. And only when the use is a substitute for the original, the court found, will it consider such economic harm. This precedent is a concerning development for publishers seeking to protect future digital licensing markets for their works. The court also seemed to give weight to the database’s ability to make such works available to the print disabled and to digitally preserve so many works.
The line of cases such as Google Books and HaithiTrust only apply in instances when the unauthorized scans are used to create a searchable database. It is unclear whether such a database may display “snippets” of the work in response to search queries (Google’s commercial project does so; the HaithiTrust’s educational project does not). But in any case, the databases do not display the entire text of the work such that it may be read in its entirety. The U.S. Supreme Court precedent in New York Times v. Tasini still stands: publishing organizations and database providers may not include the full-text of a work for display electronically if they have not acquired the rights to do so. The Authors Guild has appealed the similar Google Books decision, but unless the court distinguishes Google’s commercial scanning from the nonprofit purposes of HaithiTrust’s research library, it looks to be a losing battle.