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Tulane Journal of Technology and Intellectual Property TULANE JOURNAL OF TECHNOLOGY AND INTELLECTUAL PROPERTY VOLUME 10 FALL 2007 Increasing Access to Knowledge Through Fair Use—Analyzing the Google Litigation To Unleash Developing Countries Douglas L. Rogers* I. ACCESS TO KNOWLEDGE ...................................................................... 3 II. IN SPITE OF THE COPYING OF COMPLETE WORKS, THE PROVISION OF LIMITED INFORMATION FROM THE GOOGLE DATABASE MAKES THE LIBRARY PROJECT A FAIR USE ........................ 7 A. The Google Library Litigation ................................................... 7 B. Fair Use Is a Crucial Element of the Copyright Balance ........ 11 C. Increasing Access Favors Fair Use ........................................... 21 1. Sony: Time-Shifting Is a Fair Use ................................... 21 2. Campbell: Increasing Access Through Transformative Works Favors Fair Use ........................... 27 3. Summary .......................................................................... 30 D. It Is the End Result that Counts in Determining Fair Use ............................................................................................. 31 1. Fair Use Seeks a Balanced Result ................................... 31 2. Interim Scanning of a Picture and Then Modifying It ...................................................................... 33 a. Kelly v. Arriba Soft Corp. ....................................... 33 b. Bill Graham Archives v. Dorling Kindersley Ltd. ............................................................................ 35 * © 2007 Douglas L. Rogers. Doug Rogers is a 1971 graduate of Yale Law School and a partner in the Columbus office of Vorys, Sater, Seymour and Pease LLP. He is a member of the firm’s litigation group and its technology and intellectual property group. He is the author of a number of articles on antitrust, copyright, and trademark law and on discovery of electronically stored information. 1 2 TUL. J. TECH. & INTELL. PROP. [Vol. 10:1 c. Distinguishing Certain Copying .............................. 37 3. Duplicating a Copyrighted Work and Then Extracting Unprotected Data ........................................... 37 4. Copying of Software To Develop Compatible, Noninfringing Products .................................................... 39 5. Summary of Interim Copying Cases ............................... 42 E. The Google Library Project Is a Fair Use ................................ 45 III. TRANSLATING A LITERARY WORK INTO THE NATIVE LANGUAGE OF CITIZENS OF A DEVELOPING COUNTRY SHOULD BE A FAIR USE ...................................................................... 47 A. Decreasing the Digital Divide Is a Factor Favoring Fair Use ............................................................................................. 47 B. Treaties Promoted by the Developed Countries, Including the United States, Have Required the Adoption by Developing Countries of Copyright Laws and Thus Have Limited Access to Knowledge in Developing Countries ............................................................... 51 1. The History of Berne and TRIPS .................................... 51 2. The Trend Toward Recognition of Flexibility in Berne and TRIPS .............................................................. 57 3. The Next Step for U.S. Fair Use ...................................... 59 C. A Derivative Work Can Be a Fair Use ..................................... 61 1. Fair Use of Derivative Works ........................................... 61 2. Translations ....................................................................... 63 3. Summary .......................................................................... 65 D. Courts Should Not Consider Potential Licensing Income from All Sales of Works Bound for Developing Countries .................................................................................... 66 E. Translations of Works into the Native Languages of Citizens of Developing Countries Would Be Fair Uses ........... 71 IV. CONCLUSION—MOVING FORWARD ................................................... 73 The Google “Library Project’s ultimate goal is to work with publishers and libraries to create a comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers discover new readers.”—Google, Inc.1 “Eliminating the distinction between the information–rich and information–poor is . critical to eliminating economic and other 1. Google.com, Google Books Library Project, http://books.google.com/googlebooks/ library.html (last visited Oct. 22, 2007). 2007] ACCESS TO KNOWLEDGE THROUGH FAIR USE 3 inequalities between North and South, and to improving the life of all humanity.”—Nelson Mandela2 “Access to learning and knowledge . [are] key elements towards the improvement of the situation of under-privileged countries . .”—African Group statement to the WIPO Provisional Committee for a Development Agenda3 I. ACCESS TO KNOWLEDGE Access to knowledge is a drama playing now on at least two distinct stages. In the United States, copyright holders are suing Google to stop the use of its digital database of words (Google Database) scanned from copyrighted works (Library Project).4 On the world stage, developing countries seek to obtain greater access to the literary works of the developed countries, but international copyright treaties and trade agreements so far present roadblocks.5 The roadblocks are not 2. ERNEST J. WILSON, III, THE INFORMATION REVOLUTION AND DEVELOPING COUNTRIES 1 (2004) (quoting Nelson Mandela). 3. WORLD INTELLECTUAL PROP. ORG., DRAFT REPORT OF THE PROVISIONAL COMMITTEE ON PROPOSALS RELATED TO A WIPO DEVELOPMENT AGENDA OF THE WORLD INTELLECTUAL PROPERTY ORGANIZATION 6, available at http://www.wipo.int/edocs/mdocs/mdocs/en/pcda_4/ pcda_4_3_prov_2.pdf (last visited Nov. 7, 2007) [hereinafter PCDA REPORT]. Access to knowledge is a concern of both courts and academics. The United States Court of Appeals for the Eleventh Circuit has said the “Copyright Act promotes public access to knowledge because it provides an economic incentive for authors to publish books and disseminate ideas to the public.” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1261 (11th Cir. 2001). In 2006, the Yale Information Society Project held an Access to Knowledge (A2K) conference committed “to building a broad conceptual framework of ‘Access to Knowledge’ that can foster powerful coalitions between diverse groups.” Yale Info. Soc’y Project, Access to Knowledge Conference 2007 (A2K2), http://research.yale.edu/isp/eventsa2k2.html (last visited Oct. 22, 2007). Yale’s 2007 A2K conference aimed to “further build the coalition amongst the institutions and stakeholders” from the 2006 conference. Id. The Consumer Project on Technology (CPT) says that A2K “takes concerns with copyright law and other regulations that affect knowledge and places them within an understandable social need and policy platform: access to knowledge goods. The rich and the poor can be more equal with regard to knowledge goods than to many other areas.” Consumer Project on Tech., Access to Knowledge Movement, http://www.cptech.org/a2k (last visited Oct. 22, 2007). As the CPT indicates, A2K concerns include the effects of patent law on developing countries, but these laws are beyond the scope of this Article. For discussions of the effects of patent law on developing countries, see Debbie Collier, Access to and Control over Plant Genetic Resources for Food and Agriculture in South and Southern Africa: How Many Wrongs Before a Right?, 7 MINN. J.L. SCI. & TECH. 529 (2006); Food & Agric. Org. of the United Nations, International Treaty on Plant Genetic Resources for Food and Agriculture (June 29, 2004), available at ftp://ftp.fao.org/ag/cgrfa/it/ITPGRe.pdf; United Nations, Convention on Biological Diversity (June 5, 1992), http://www.cbd.int/doc/legal/ cbd-un-en.pdf. 4. Google.com, About Google Book Search, http://books.google.com/googlebooks/ about.html (last visited Oct. 22, 2007). 5. See, e.g., Alan Story, Burn Berne: Why the Leading International Copyright Convention Must Be Repealed, 40 HOUS. L. REV. 763 (2003); Donald P. Harris, Carrying a Good 4 TUL. J. TECH. & INTELL. PROP. [Vol. 10:1 insurmountable on all issues, however, and on June 29, 2007, a committee of the World Intellectual Property Organization (WIPO) issued a report recommending using the flexibilities in intellectual property treaties to increase access to knowledge in developing countries.6 This Article discusses how the U.S. copyright fair use statute (1) should resolve the Google litigation and (2) could play an important role in increasing access to knowledge in developing countries.7 Some scholars have questioned whether the U.S. fair use doctrine conflicts with the applicable international treaties.8 One way to address that question Joke Too Far: TRIPS and Treaties of Adhesion, 27 U. PA. J. INT’L ECON. L. 681 (2006); Brigitte Binkert, Why the Current Global Intellectual Property Framework Under TRIPS Is Not Working, 10 INTELL. PROP. L. BULL. 143 (2006); Marci A. Hamilton, The TRIPS Agreement: Imperialistic, Outdated and Overprotective, 29 VAND. J. TRANSNAT’L L. 613 (1996). 6. PCDA REPORT, supra note 3, at 32-36 (Annex I, including recommendations 14, 17, and 45). 7. This Article uses the term “developing countries” to include (1) countries with low levels of economic development and (2) the least developed countries that may, in fact, not be developing yet. There is no single recognized definition of a developing
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