The Google Books Fair Use Decision: an EU Perspective

Jon Band raises the intriguing question of how the Google Books case would be decided by a court applying the law of authors’ rights. Let me make a not-so-wild guess: probably not so good for Google. It’s hard to imagine a (say) French court agreeing that the wholesale scanning of millions of in-copyright books (many written by European authors) would be allowed without permission of the right holders. The Infopaq decision by the European Court of Justice, holding that a scanning process resulting in 11-word keyword-in-context output might qualify as copyright infringement in so far as these 11 words reflect ‘the author’s own intellectual creation’, also does not help. More importantly, laws on authors’ right  do not provide for general fair use type limitations and exceptions.

But there is light at the end of the tunnel. Copyright law making in Europe is seeing a gradual paradigm shift, both at the national and the European levels. Earlier this year (in the case of Ashby Donald e.a. v. France) the European Court of Human Rights, for the first time in the 55 years of its existence, recognized the inherent conflict between copyright and free speech.  According to the European Court, copyright restricts freedom of expression and information, and must therefore satisfy the proportionality test of Article 10(2) of the European Convention on Human Rights. In other words, copyright protection in any given case must be “necessary in a democratic society”. While allowing Convention states a broad ‘margin of appreciation’, this is an important statement by an authoritative Court. Authors’ rights may have a basis in human rights, these rights have to be weighed against freedom of expression and information, and are therefore never absolute.

The European Commission’s recent consultation document “on the review of the EU copyright rules“ is another case in point. Anticipating a possible review of the EU’s Copyright in the Information Society Directive, the European Commission asks some 80 pertinent questions, many of which were until recently considered taboo. Several questions asked to the citizens and lobbyists of Europe concern the possible need for (more) flexible copyright limitations. Should the EU introduce a mechanism of built-in flexibility, such as fair use or a similar open norm? The consultation document also, more specifically, addresses the issue of data and text mining – a problem that was already identified in the Hargreaves review of UK copyright law.

Undoubtedly, Judge Chin’s recent decision in the U.S. Google Books case will influence European policy making in these areas. Even if Europe still cherishes its authors’ rights tradition, and will never (oh no!) totally surrender  to American copyright utilitarianism, Europe also does not want its ‘knowledge society’ to fall further behind that of its greatest rival. Whatever will be the outcome of the EU’s ongoing copyright review, Judge Chin’s decision has put flexibility in copyright squarely on the European map.

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