Google Books and Fair Use: A Tale of Two Copyrights?

On 14 November 2013, the US District Court of the Southern District of New York issued a major ruling in favour of the Google Books project, concluding that Google’s unauthorized scanning and indexing of millions of copyrighted books in the collections of participating libraries and subsequently making snippets of these works available online through the “Google Books” search tool qualifies as a fair use under section 107 USCA. After assuming that Google’s actions constitute a prima facie case of copyright infringement, Judge Chin examined the four factors in section 107 USCA and concluded in favour of fair use on the grounds that the project provides “significant public benefits,” that the unauthorized use of copyrighted works (a search tool of scanned full-text books) is “highly transformative” and that it does not supersede or supplant these works. The fair use defence also excluded Google’s liability for making copies of scanned books available to the libraries (as well as under secondary liability since library actions were also found to be protected by fair use): it is aimed at enhancing lawful uses of the digitized books by the libraries for the advancement of the arts and sciences. A previous ruling by the same court of 22 March 2011 had rejected a settlement agreement proposed by the parties, on the grounds that it was “not fair, adequate, and reasonable”. The Authors Guild has appealed the ruling.

Access for All? The promise and problems of universalism.

In what follows, I explore why the question of ‘access for all’ is both important and difficult. Beginning by treating it as a contested claim, I will consider some of its political, institutional and professional implications. What do I mean by saying that access for all is a contested claim? First of all, it is a claim – a demand that access for all needs to be created. It is a claim about change. To demand ‘access for all’ is to speak about, and speak against, social conditions that are unjust, unequal or excluding. At its simplest, then, to claim ‘access for all’ is to address social arrangements in which all people do not have access. Secondly, it is a claim made by – or on behalf of – specific social groups against their experience of exclusion, marginalization or subordination. I have added these other terms because I think that ‘exclusion’ is too simple, and too problematic, a term to capture all the aspects of unjust social arrangements that produce claims for ‘access’.1 Access is a demand to be treated equitably in relation to a range of valued social resources, conditions and relationships. It is a claim to be a member: of the society, the polity or the nation. It is a claim to be a citizen: to possess rights and the capacity to make legitimate demands on the state. It is a claim on the apparatuses and agencies that sustain social citizenship: citizenship brings with it access to benefits, services and rights of ‘fair dealing’ or ‘fair treatment’. As this last point suggests, it is a claim about equality: the expectation that all citizens will be dealt with by public agencies in ways that are not discriminatory or oppressive.

Open Innovation: Legal Hurdles in the Creation of Contractual Arrangements Governing Idea Competitions?

The phenomenon of Open Innovation has been gaining prominence over the last decade. Idea competitions have been used in a variety of industrial sectors. Nevertheless, the legal issues raised by this topic have not been broadly addressed, yet. These arise from the adverse interests of the actors. The company which organizes an idea competition would usually like to have the opportunity to comprehensively use the solutions, ideas or products submitted by the competition entrants. For the company it is important to obtain all intellectual property rights in the idea, in the product created as a result and, thus, in the rights to be exploited in the future, in particular, patents, utility models, trademarks, copyrights and registered designs as well as other industrial property rights. The participant would like to participate to the greatest extent possible in the success of the submitted solution. This affects, firstly, the question of fair remuneration or further participation in any profits earned as well as, secondly, any personal rights such as being named as inventor or author. The article aims to show the contractual difficulties which have to be addressed tailoring theterms of an idea competition under German law.