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Digitization and Transformative Uses

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The mass digitization by Google of millions of books made available to it by various libraries remains a matter of legal contention. A high-profile case dealing with this controversy currently is under review by the US Court of Appeals for the Second Circuit. The court will be reviewing a decision last year where the US District Court in New York entered judgment in favor of Google based on a “fair use” defense under the Copyright Act of 1976.

The lower court found Google’s use was “highly transformative” because Google had converted the books’ text into digital form, creating a full text search capability that made existing works more accessible to users, and enabling new forms of research. Google also provided each library with a digital copy of all of the books in that library’s collection.

The court accorded little weight to the commercial benefit that the content digitizer derived from the creation of digital book copies. Significantly, it found that digitizing a book had little likely effect on the authors’ actual or potential markets for their works.

The case underscores the increasing significance of “transformative use” in evaluating a fair use defense. Twenty years ago, the US Supreme Court embraced “transformative use” as a highly influential (though not determinative) factor in assessing fair use. To assess whether a use is transformative, the legal analysis focuses on whether the allegedly infringing work merely supersedes the original work or instead adds something new, with a further purpose or different character.

What Counts as Transformation?

Subsequently, lower federal courts began to interpret “transformative” in two significantly expansive ways. First, they increasingly used the term to encompass not only changes to the substance of a work, but also changes to how the work is used (even absent changes to the work’s content), referring to this repurposing in a new work as “functional transformation.”

Second, and more radically, courts began to apply the “transformative” and “functional transformation” labels not only to new works incorporating unaltered copies of preexisting works, but also to new uses that exploited the prior work(s) without creating a new work. "Transformative" thus has become uprooted from its original context of “new works” to become applied to a much broader context of “new purposes.”

When is Digitizing not Fair Use?

This broadened view of what it means to be transformative has opened the door to claims that making complete copies of multiple works, even for commercial purposes, and even without creating a new work, can be a fair use. This is a substantial departure from the long-prevailing view that copying an entire work generally is not a fair use.

What happens when mass digitization moves beyond legacy works to born-digital material? Is it an acceptable transformative purpose simply to want the digital full-text books standardized in one’s own database? What if the work already is preserved and available for full-text search in a database? Is the public benefit from a second or third (or twentieth) version of the work in digital form still as compelling? What are the security requirements? Who is permitted to acquire books for free? And is it realistic that these multiple databases will all exist without anyone using the component works for their substance, rather than merely for indexing purposes? If this can be done with books, why not motion pictures or musical works?

The conditions for mass digitization should be carefully balanced with input from the wide range of affected parties. Those issues:

  1. Who should be permitted to digitize works and under what circumstances?
  2. When the digitized works may be used for profit of the digitizer.
  3. Under what conditions libraries or other institutions may make full text materials available to users.
  4. If digitization is done for the ostensible purpose of “preservation,” what preservation standards the digitizer should be required to meet?
  5. Whether and how some form of collective licensing might be developed to facilitate a mass digitization scheme fair to authors and users alike.

Defining the terms and conditions under which mass digitization can be undertaken is quintessentially a legislative activity. The courts, whose perspective is based on the single set of facts that confront them in a particular case, are not well suited to determining how best to regulate broadly in this difficult and complex area.

  • Stuart N. Brotman is a nonresident senior fellow in the Center for Technology Innovation within Governance Studies at Brookings. He has extensive experience as a global executive, management consultant, international communications and media lawyer, university educator, and government policymaker.  He served as Chief of Staff on the founding senior leadership team at the National Telecommunications and Information Administration and completed two terms as a member of the US Department of State Advisory Committee on International Communications and Information Policy.

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