Google's book-scanning is unlikely to qualify for an EU copyright exception

Fair use is an affirmative defense. It is raised in a trial only if the copyright owner, the author, has proved that copyright infringement has otherwise occurred. Thus, the first thing that must be shown in a copyright action is that a work protected by copyright was copied. For example, if the defendant says: "I did not copy you", that is, if he proves that he independently created his work without copying the plaintiff's, we never get to fair use. Similarly, if the defendant says: "The only things I copied from your work were ideas or information", those things are not protected by copyright. You never get to fair use then, either. Fair use is the last stage of a copyright action. If the defendant cannot successfully defend that he did not copy copyrightable material, then he can say: "OK, I copied, but my copying is excused under the fair use doctrine". In this case, the first thing that the statute instructs the court to take into account is the nature and the purpose of the copy ?for commercial purposes, for non-profit educational purposes, etc. The court also pays attention to the nature of the copying: did the defendant simply copy and not do anything more with the appropriated work, or did she incorporate the copied material into some independent work, like a commentary, a parody or a news report. The second criterion has to do with the nature of the copied work: works which are intensively informational tend to be less protected than others. The third factor is the amount and substantiality of the copying, and the fourth one is the economic impact of the copying. The main difference is that exceptions in Europe are a closed list. There, a copyright exception applies only if the purpose for the copying or the communication to the public is on the list in article 5 of the 2001 "Information Society" Directive and has been enacted in national law. This article settles a maximum basis for copyright exceptions. A member state cannot create an exception that is not provided for in the Directive. According to the Cour d'Appel de Bruxelles, Google News can reach agreements with the news sources from which it copied. So far, however, Google has not been willing to pay for licenses to "scrape" news sites (to copy the headlines and first two sentences of news stories appearing on the sources' web pages). In Belgium, the publishers and journalists were not saying that they did not want their works to be collected by Google: they just wanted Google to pay them for this; Google, like most other businesses who exploit copyright, should pay for it. The SDNY decision was not about fair use; it was about whether or not to approve a settlement reached between Google and the authors and publishers of books Google had scanned and stored in its database. Google has now scanned 15 million books, and many of them are still protected by copyright. Google has done this without permission and without paying; Google has made no efforts to look for the owners of these works. Its position has been: "If you do not like it, just tell us about it and we will stop". Google takes a book from a university library, scans the entirety of the book and stores the entire text permanently in its database. That text is searchable, so a user who wants to know where in a book a certain phrase occurs can enter the words in the search query and then Google will return this information. But this return consists of two or three lines, not a whole page, not the whole book. As a result, Google claims that this combination of activities is a fair use. The company says that the stored copy of the entire book is necessary to generate the two or three line "snippet" in response to the search query. In addition, the information provided is very short. It is what in Europe could be considered a brief quotation, at least according to Google. While Google says it will stop showing the snippets if the right-holders object, it is not clear whether Google will also stop storing the book in its entirely in the database. Google says: "Look at the output: the only output that the user sees is these two or three lines". And the publishers say: "Look at the input: you have millions and millions of books that are being used internally in their entirety". In fact, one reason that Google has one of the best automatic translation programs is because it uses others' books stored in its database. Principally, one of the points the right-holders are insisting on is that authors and publishers want to control the commercialization of their work. If somebody wants to copy it, he has to ask for permission. Google's approach is just to do what it wants and then encourage the authors to contact the Google if they do not agree. This is an approach that Google has used on the Internet from the beginning. That is the point. The request for permission must come from the exploiter; the burden should not be on the author to object to a fait accompli. Copyright in Europe and in the US is a property right, and one of the essences of the property right is that you control what happens with your work. Imagine that Google said: "We are moving to your house; if you do not want us to settle in, tell us; otherwise we will make ourselves at home"! An answer depends on if the fair use question is ultimately resolved in the Google Books controversy, but it also has to do with the way in which the issue will be resolved. Nobody knows. Google's book scanning is unlikely to qualify for an EU copyright exception. Perhaps not surprisingly, therefore, there is also a French case against Google. It concerned the book scanning program; Google contended that its copying of the entirety of the French books was done in order to deliver a short extract. Google defended itself on the basis of the exception in French law for short extracts, or "brief quotations"?courtes citations. But the French interpretation of the brief quotation privilege requires their incorporation into an independent work, an "oeuvre citante". Google does not incorporate these quotations in any other work; it simply communicates the "snippets" in response to search queries. As a result, held the French court, Google's activities do not fit with the French legal exception. People who acquire unlawful copies are not themselves copyright infringers, unless they also make the copy. Traditionally, the end user was not an infringer: the infringer was the intermediate distributor. Anyway, with the Internet the analysis is different; because ICT entails that the end user makes the copy. When a work is made available over the Internet and you download it, you are making a copy, so, in the absence of an applicable exception, you become an infringer. In Europe, this practice may come under the exception for private copying. The U.S. does not have a general private copying exception. One of the considerations in Europe nowadays is whether the private copy exception applies only if the source of the copy is a lawful source. If you make a copy from a DVD or CD you purchased, this is a lawful source, but if you download from a pirate site it is not. In any case, going against the final users instead of the intermediaries is generally very expensive and very unpopular. Moreover, few if any end users are likely to be the objects of criminal prosecution, at least not in the U.S Actually, it is not so easy to find out the identity of the end user infringers, at least in the US, because you have to find out who the person is that corresponds to the IP of the computer. For that, you need the ISP's cooperation. Under U.S. law it is not clear whether the ISP has to give you the name. There are difficulties on both sides. Fair use is very flexible, which is good. But because of being very flexible it is very unpredictable. On the other hand, in Europe, having a closed list of exceptions is an advantage for companies. They can easily ascertain if what they do is on the list or not. If it is not, they can start negotiating deals. Nonetheless, a closed list can be considered too restrictive, which in turn could create pressure to find other sources for exceptions: for example, the article 10 of the European Convention on Human Rights, concerning access to culture and to information. There is nothing new in that. That is what copyright has been doing since even before copyright as we know it today existed, since the printing press appeared in Europe in the 15^th century. The claims that people are making about the Internet today do not sound so different from what people were saying about the telegraph. Today's totally revolutionary technology may seem rudimentary tomorrow.