Another chapter of the Google Books Copyright dispute – does the US Supreme Court decision affect Australia?

There have been recent reports of the decision by the U.S. Supreme Court that the Google Books project, which involves digitising books, does not infringe copyright in the United States. Digitising books permits users to search books online as well as download individual pages of books displaying the search result. The decision was based on the U.S. “fair use” exception, which is a broad defence to copyright infringement that has no equivalent in the Australian Copyright Act. The Australian Law Reform Committee and the Productivity Commission have recommended the creation of a fair use exception in Australia, but our Federal politicians are not really focussed on this issue right now.

This does not mean that the Supreme Court decision does not affect us in Australia. It all depends on where Google carries out the digitisaiton, and where the servers holding the digitised books are located.

This is because an infringement of the Australian Copyright Act (in the particular context of the Google Books methodology) only occurs if the whole, or a substantial part, of the book is either reproduced or communicated to the public (made available on the internet) in Australia.  If the digitisation (reproduction) takes place in the United States, and the servers holding the digitised books are also located there, the only act that takes place in Australia is the downloading of the pages containing the search terms to the user’s server and computer.  While it is possible that these pages will constitute a substantial part of the work, this will not usually be the case, and copyright will not be infringed by the download. In this case, Google’s US victory allows Australians to continue an act that is permitted by Australian law.

Annette Rubinstein, Former POF Attorney

BA(Hons) LLB(Hons)

Annette has worked in the Legal Policy and Research Department of the Victorian Attorney General’s Department and has practised as a barrister.