Google lands into controversy

Google has landed into controversy with regard to its services, Google Books and Google News. Authors Guild has filed a lawsuit contending copyright violation and objecting three sentence “snippet” of a book that is reproduced by the search engine.

The 2nd Circuit U.S. Court dismissed the contention and held that the concept of snippet is highly transformative and falls within the ambit of “fair use” in copyright law. The Manhattan Court heard the arguments by way of an appeal. The approach of the bench seemed to favour the defendants stressing on extreme liberal approach of fair use. Judge Level is of the view that most classic fair use cases were based on activities that were commercial in nature.

The aspect that needs to be focused here is the traditional jurisprudence on fair use. According to it, mere reproduction in the absence of any value addition would not constitute fair use in such a profit-making scenario. Google Books makes no value addition to the book.

-Shambhavi Mishra

Orphan Works

Copyright protected work for which the rights holder(s) is/are positively indeterminate and cannot be contacted, is said to be an Orphan Work. Even when the author is known, but there is lack of sufficient details to contact him or her, the work falls into this domain. A copyright holder’s sudden demise might also lead to the work slipping into the category of Orphan Works, when the inheritance cannot be established.

The fact that the owner of the copyrighted work cannot be reached makes it very difficult to obtain his permission for the use of the work, mere digitization becomes impossible. The use can only be warranted by Fair Use Exceptions.

The respective Governments have taken steps towards extending the accessibility of these works to the general public for these works to maintain their successful circulation and some have also taken steps to guarantee the payment of royalties for use of such works.

The latest news in this regard, is the UK IPO’s licensing scheme for Orphan Works. The IPO intends to maintain a register of works which can be licensed out to Applicants upon payment of royalties. The register will also enable the authors to check if any of their works have been labeled as Orphan Works under the system. The IPO also retains the power to deny the Applicants licenses where the proposed use is deemed to be inappropriate, or on any other reasonable ground.

The EU rules, in place, have already allowed the libraries, museums and universities, among other institutions, to digitize “Orphaned Works” from their respective collections, only after a diligent search has been carried out for determining the owners of the works. It is only time which shall determine the success of the scheme which the UK IPO has intended to move ahead with, and similar frameworks being adopted by other IP regimes across the globe. 


- Bagmisikha Puhan

Fair Use Defense

Fair use as a concept stands on very tricky grounds. One cannot just be sure if the ground will stick through as fair use or not. In the scenario where such a matter reaches the courtroom, the time and finances that are invested into settling the dispute, many a times outweighs the benefit reaped out of the use in the first place.

For all those people who have been taking shelter of acknowledgments and disclaimers are not really safe. The very fact that one has acknowledged the original author in his or her use of the protected work does not preclude the person from their liability in a suit of infringement.  The fact that the original author has been cited can support the author in his claim of infringement; if he chooses to retort to the claim of a person infringing upon his right of publicity.

The fact that a disclaimer has been added to the use of the protected work does not preclude the user from his liability towards infringement. A disclaimer stands to prove stronger grounds for fair use, but does not stand as a ground for defense in its own merit.

One of the best ways to avoid any claims of copyright infringement is to abstain from using the protected material without the explicit permission of the original author. Apart from the usual factors which are taken into consideration while judging an instance of fair use, consideration of acknowledgements and disclaimers proves to be a viable option for the courts. 

- Bagmisikha Puhan