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Put Your (Hathi) Trust in Fair Use

Once again, a court has confirmed that libraries may rely upon fair use when digitizing copyrighted works and making them available for new purposes and audiences.  The Second Circuit Court of Appeals issued its opinion yesterday in the Authors Guild’s appeal of the summary judgment rendered in favor of  HathiTrust Digital Library and several of its university library partners.  At issue in the underlying case was the legality of HathiTrust’s digitization of thousands of copyright protected books. Digitization had been done for three purposes: to create a searchable database allowing researchers to identify relevant works through keyword searches; to provide access for those with print disabilities; and to digitally preserve unavailable but still copyrighted titles that were lost, destroyed or deteriorated.

Following the district court’s grant of summary judgment in favor of HathiTrust, the Authors Guild appealed. (Click here for my summary of the 2012 judgment in the AG v. HT lawsuit.) The Second Circuit affirmed the district court’s grant of summary judgment in favor of HathiTrust as to full text searching and print disabled access but vacated and remanded as to the issue of preservation. Brian Carver at UC Berkley’s iSchool nicely summed up the decision: “Today’s decision is an important reaffirmation of the fair use doctrine’s role in enabling transformative uses of copyrighted works that enable the creation of new information-location tools and in the ability of libraries to serve the needs of their print disabled patrons.” Going forward, it will be interesting to see what impact this decision has on other pending fair use cases, including the appeal of the copyright infringement lawsuit against Georgia State for its electronic course reserves practices.

In its opinion, after providing a nice summary of previous cases that illustrated the application and importance of fair use, the court sets forth its view of the four factors of fair use and their application:

Factor One – The purpose and the character of the use. The focus here is on transformative uses; however, the appeals court disagreed with the district court’s characterization of what is a transformative use. The test is not whether there has been added value or utility; rather, the test is whether the new use or purpose allows the work to serve a new and different function while not also merely being a substitute for the original work.

Factor Two -The nature of the work. The appeals court continues the precedent of prior adjudications and looks at whether the work is more creative, which is more valued in copyright law, than factual.

Factor Three -The amount of the work used. The inquiry here is whether the quantity and value of the materials used is reasonable in relation to the new uses. That is, does the transformational character of the use justify the quantity used?

Factor Four – The effect on the market for the original work. The appeals court asserts that this is the single most important element of fair use and that the burden is upon the copyright holder to demonstrate that the secondary use serves as a substitute for the original work.

With its fair use framework established, the appeals court turns to evaluation of the purposes of HathiTrust’s digitization efforts:

Full Text Searching

Factor One – “The creation of a full-text searchable database is a quintessentially transformative use” the appeals court declares. Because authors do not write works with the purpose of enabling text searching, the digitization of those works to enable this function adds to the original “something new with a different purpose and a different character.”

Factor Two – Like the district court, the appeals court dismisses this factor as not dispositive of the case because of the overwhelming transformative nature of the creation of a full text search database.

Factor Three – Digitization of entire works was not unreasonable as it was necessary in order to enable the full text search of the HathiTrust corpus. The existence of multiple copies on different secure servers also did not negate a finding of fair use as, again, their existence was necessary to enable the functionality of the database.

Factor Four – The appears court claims that “the only market harms that count are the ones that are caused because the secondary use serves as a substitute for the original, not when the secondary use is transformative.” The appeals court dismisses the Authors Guild’s argument that the creation of the HathiTrust Digital Library could impede their ability to sell licenses to digital copies of the works. “Lost licensing revenue counts…only when the use serves as a substitute for the original,” and it has already been established here that the full text search function did not stand as a substitute for the original works.

Print Disabled Access

Factor One – The appeals court disagreed with the district court’s characterization of providing access to print disabled persons as transformative: “providing expanded access to the print disabled is not ‘transformative.’…By making copyrighted works available in formats accessible to the disabled [HathiTrust] enables a larger audience to read those works, but the underlying purpose of the use is the same as the author’s original purpose.” However, a finding of a transformative use is not required for a use to be deemed a fair use. And here, providing access to persons with print disabilities is a valid purpose under Factor One as evidenced by the legislative mandate of accommodation.

Factor Two – In short order, the appeals court states that Authors Guild wins on this factor, but a a win on this factor does not preclude an overall finding of fair use.

Factor Three – The digitization and conversion of the full copyrighted works was necessary to allow print disabled persons to perceive the works and thus was in line with and supportive of the purpose.

Factor Four – Looking at the current market for commercially available accessible works the appeals court determines that it is “insignificant” because publishers typically forgo royalties that are generated through the sale of books manufactured in specialized formats for persons with print disabilities. Further, it has been a recognized problem that more titles are not made available to persons with print disabilities. HathiTrust’s work addresses this problem while not causing any harm to the market.

Preservation

The appeals court does not believe that Authors Guild has standing to challenge this purpose of HathiTrust’s digitization because no evidence was presented that the members they represent owned copyright in works that had been shown to be irreplaceable at a fair price and thus subject to digitization by HathiTrust for preservation purposes. Therefore, the appeals court vacated the district court’s judgment as to this claim.

 


Additional recommended reading on the case:

James Grimmelman – “Google Books Round 86: Libraries Win Yet Again
Krista Cox (ARL) – “Second Circuit Affirms Fair Use in Authors Guild v. HathiTrust

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