Copyright in the digital age

There's a fascinating talk by Lawrence Lessig up on his site about Google's Book Search, and the lawsuits that have been brought against it. These cases focus on the doctrine of "fair use". This doctrine is what, for instance, allows me to quote from copyrighted materials, so long as I'm not using too much of that material.

Lessig builds the legal case for Google on two basic arguments. The first is that there's a transformation of some kind on the work. Google Image, for instance, creates thumbnails of (possibly copyrighted) images, and then uses those thumbnails to link to the originals. This has been held to be fair use. Lessig argues that what Google Book Search is doing is analogous; it's giving users a reduced portion of the work—in this case a "snippet" of text—which links to the original, or to the publisher's site or some such.

The other argument is that Google Book Search remedies a market failure for a portion of the books indexed. Books which are in the public domain (about 16% of the total) are not in question; books which are currently in print, or have recently gone out of print (another 15%) are being dealt with by negotiations between Google and the publishers in question. The problem comes with the remaining 69% or books which are still under copyright, but are no longer in print. In many, perhaps most, cases, the copyright holder cannot be identified or located. As a result, there's a piece of property which is said to belong to someone, but because the owner is unknown, it cannot be bought and sold. This is a clear market failure.

I would think that for most authors, the problem is not so much potential loss of royalties as it is lack of exposure. Most books sink without a trace. And if Google Book Search helps little-known books find an audience, I think it would be welcomed by both authors and readers. As with music and movies, it's the desires of the few very popular creators that are being allowed to drive decisions. It's not good for the arts, it's not good for the vast majority of creators, and it's not good for the rest of us. Who wants to listen to Top 40 radio all of the time, or read only Tom Clancy, or watch only Bruce Willis movies?

Technorati Tags: Google, Intellectual Property