What is ‘Fair’ When It Comes to Copyright?


After a landmark decision on Friday, a federal circuit court in the USA has ruled that after ten years of legal battles, Google Books, is legal.

In case you aren’t familiar with Google Books (does such a mythical creature exist? Maybe.), it is a service that scans books—whether protected or not—and displays free “snippets” online. The goal is to digitize entire libraries of thousands of volumes and to make as much information as possible available and easily searchable.

This isn’t news for educators and librarians, as well as publishers and authors, but opinions are mixed as to whether this ability to share published information is desirable. On the one hand, many argue that freedom of information is key, and that the information contained in books should be accessible to as wide an audience as possible. On the other hand, authors and publishers want to be sure that their intellectual property is protected and that they are fairly compensated for their work.

Not surprisingly, the case has renewed talk about copyright not only in the USA, but in Canada as well, particularly because of the specific legal concept behind the court’s decision.

On ‘fair use’ and ‘fair deal’

The ruling relies heavily on the concept of fair use, a notion that allows people to use copyrighted material without getting explicit permission from the copyright holder so long as they meet certain broad criteria. [Update: there are also some considerations specifically for digital media.] But lest you think this is a uniquely American concern, it should be noted that in Canada, we have similar legislation. Called ‘fair dealing’, it takes into account several similar principles, including the purpose, character, length and necessity of the use of quoted material.

So what’s the big deal? The big deal is that defining fairness is a pretty tough job—and one that legislators may not have fully considered.

Two cases

I think most of us can agree that it is unlikely that short, tweet-length snippets are going to infringe too much on the rights of authors and their publishers, or impact sales. Indeed, many publishers, including the Porcupine’s Quill, upload the books to Google themselves in order to offer potential customers a way to browse a small amount of content before they commit to buying the full book. Things get dicey when the scanning is done without the knowledge or consent of the copyright holder, but for the most part, the length of the snippet is so short that the potential good probably outweighs the harm. In this case, with the intent of providing information to further purchasing decisions, the use is, in my opinion, fair.

But what about in other contexts? A recent article in the National Post talks about recent amendments to Canadian copyright legislation that introduced an education exception within the existing notion of fair dealing. The result of the amendment has been wholesale copying of huge swathes of text from published material without consent or compensation to copyright owners. The text might appear in course packs, those coil-bound, photocopied mainstays of survey courses throughout academia—or as handouts to students and so forth. It used to be that universities paid publishers for this privilege, but no longer. Rights sales to publishers from educational institutions, once a counted-upon source of revenue, have become basically nonexistent. Is this fair? How does this differ from the Google case?

Why yes, size does matter

I would argue that of all the criteria proposed under the US fair use and Canadian fair deal policies, the crucial point is length. This single criterion can help determine the kind of effect the use of the text will have. A short excerpt likely won’t allow a new work to compete with the book. It won’t hurt book sales, or stop royalty payments. But at which point does it become infringement? After a paragraph? A page? Twenty pages? The legislation is not clear.

So while a landmark decision on the legality of Google Books is all well and good, the issue of what is ‘fair’ when it comes to copyright still exists. Until we include a more robust definition of the notion in the legislation, and until we can come up with a consistent and reasonable measurement for ‘fairness’, the legislation is fair to no one—not readers, not educations, not authors, not publishers.

portraitWe want to hear what you think about the fair use and fair dealing policies. Tell us your opinion in the comments below, or on Facebook or Twitter.

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The Porcupine's Quill would like to acknowledge the support of the Ontario Arts Council and the Canada Council for the Arts for our publishing program. The financial support of the Government of Canada through the Canada Book Fund (CBF) is also gratefully acknowledged.