Google: Search or Destroy?

Abstract

In Opening in England, Australian poet Les Murray declares: “ Wage justice for poets, a living / like that of all who live off our words. ” Such heartfelt sentiments have recently been expressed in the context of litigation by the Authors’ Guild against Google Book Search. In December 2004, the search engine Google announced that it had entered into agreements with four university libraries and the New York Public Library to “digitally scan books from their collections so that users worldwide can search them in Google.” In September 2005, the Authors’ Guild filed a class action against Google alleging that the Google Book Search project had infringed copyright in literary works through its unauthorised scanning and copying of books. A month later, the Association of American Publishers filed a separate action for copyright infringement. The President of the Authors’ Guild, Nick Taylor, observed: “The alphabet ought to be free, most certainly, but the people who painstakingly arrange it into books deserve to be paid for their work. This, at the core, is what copyright is all about. It's about a just return for work and the dignity that goes with it.” Undeniably, creative artists have been poorly compensated for their endeavours. As Australian musician and politician, Peter Garrett notes: “The best that the majority of working contemporary artists can hope for is a paltry, uneven return for their creative effort.” This article is the result of symposium entitled “Google: Infinite Library, Copyright Pirate, or Monopolist?”, held by the Australian National University’s Institute of Social Sciences and Law on 9th December 2005. To hear audio footage of this event, visit here It is arguable that copyright law has proven to be a poor mechanism for providing a living wage for authors and other creative artists. The economic rights of authors have traditionally been assigned or licensed to publishers in return for the dissemination of literary work and, as a result, authors have been poorly compensated by publishers for the reproduction and dissemination of their work. Furthermore, in the US there is no adequate protection of the moral rights of authors in relation to attribution and to the integrity of their work. By contrast, other jurisdictions, such as Australia, Canada, and the European Union provide better legal protection of the honour and reputation of creators. The legal action by the Authors’ Guild against Google is by no means guaranteed to be a success. It will be difficult to establish that biographer Herbert Mitgang, children’s storyteller Betty Miles, and poet Daniel Hoffman form a representative class which would be harmed by the Google Book Search venture. Furthermore, Google has a strong argument that its index is protected by the US defence of fair use, as it is a transformative activity and in no way a substitute for the purchase of books. If it is really concerned to “wage justice for poets”, the Authors’ Guild would be better off exploring alternative policy mechanisms – such as industrial relations and taxation law – to protect the livelihoods of authors. In Canada, the Government passed the Status of the Artist Act 1992 to recognise the contribution made by artists to various aspects of Canadian life. The legislation allows creative artists to engage in collective bargaining for industrial relations under the auspices of the Canadian Artists and Producers Professional Relations Tribunal. In the European Union, Luxembourg has implemented similar legislation. Notably, the Republic of Ireland has sought to implement policies to help secure a living wage for authors. Most significantly, since 1969, the work of authors, creative artists and musicians living and working in Ireland are exempt from income tax on income derived from work of cultural merit. Such policy options seem better tailored to achieve the wistful hopes of authors like Les Murray who yearn to “Wage justice for poets, a living / like that of all who live off our words.”