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The project known as Google Books case
Google, what is Google? “Google is an American company founded in September 1998 whose main product is a search engine created by Larry Page and Sergey Brin. The term is usually used as a synonym for this search engine, the most used in the world."
In 2004, when, the founders of Google, Larry Page and Sergey Brin, began to devise a project, where they would digitize world bibliographic works to make them accessible online on the Internet . To specify their project, in the first instance signed agreements with several libraries in the world, including the USA.UU. and Spain. This project would be known, then, worldwide as "the Google Books case".
Google began to scan and digitize massive books, whether public or private domain, of any genre, and began to upload them to the network, without asking for any consent from their headlines, or paying royalties for their publication. However, Google did not access the entire book, but through the search for keywords, gave access to the paragraph of the book where those key words were found; although he gave access to the full book of those who were no longer protected by copyright.
When the different authors and editors of books, worldwide, they learned of this idea, began to take legal actions, claiming massive violation of Copyright. Therefore the EE authors society.UU. "Authors Guild", and the Association of American Editors "AEA", among others, decided to sue Google. This was completed in 2005 when civil actions against Google began, who, from the beginning, used as a defense the exception of Fair Use (fair use) planned in the Copyright Act of the USA.UU.
“The Fair Use was developed as a judicial doctrine and was then encoded in sections 107 and 108 of the United States Copyright Law. It constitutes an important limitation to the exclusive rights of the holder of the intellectual work, which authorizes the free use of a protected work for criticism, comment, news, teaching (including multiple copies), instruction and research."
Google began to negotiate with some authors and editors to be able to sell the digitized version of their books, through Google Books.
Despite this last Google initiative to contact writers and editors, from the beginning its actions was controversial, in that Google, did not ask for the corresponding authorization, initially, to the head of the copyright, to add their books To its digital platform. Google excusing himself by saying that the costs of asking permission would be very high, and that is why he decided to do it without asking for any type of authorization.
After filed the lawsuit against Google, the company tried to reach an extrajudicial agreement with the authors and editors, for this reason in 2009, they appeared before the court with an agreement, so that the latter would approve it. Said court rejected the proposal for agreement.
The trial was held in the USA.UU., In the first instance the judge concluded that the action of Google Books was protected in the Fair Use. The plaintiff appealed this decision and the appeal chamber confirmed the first instance decision, so in 2013 the Court issued the Google Books project. The plaintiff appealed again before the Court of Appeal of the Second Circuit confirmed the sentence of the previous instance in 2015. The plaintiff once again appealed before the US Supreme Court.UU., The Court decided not to take the case, so the failure of the Chamber of Appeals was firm, on April 18, 2016.
The most characteristic note of this case in the US judicial stages.UU., It is the foundation of Judge Chin, of the Appeal Chamber, mentioning after making an analysis of the 4 factors that should be given for the correct use of Fair Use, the judge said that the use that Google made of the books was transformative , that the books were not whole, but by fragments, in a limited way, and that what Google did was not replace the original works, that if they were protected, but that it made a fair and limited use, within an initiative that was beneficial for the development of art, research and science; Judge Chin argued that Google Books gave tools to librarians and investigators.
What would have happened if the case had developed in Argentina? With Argentine laws as a legal framework? With Law 11.723 as a general framework in this controversy?
First we must bear in mind that the copyright and inventor is contemplated in the Argentine National Constitution, in its article 17 when mentioning (…) ”Every author or inventor is the exclusive owner of his work, invention or discovery, for the term that The law agrees "
Nationally is Law No. 11.723, which is the legal regime of intellectual property ”, approved on December 15, 1994, and promulgated on January 1995. Which had a series of modifications, the last was modification was made by Law No. 26.570, of December 14, 2009.
His first article mentions "(…) scientific, literary and artistic works include writings of all nature and extension, (…)"
If this case had occurred in Argentina, I consider that it had been resolved as follows:
Google from the beginning acted in bad faith, without trying to ask any permission from the writers and editors of those books that I planned to digitize. Both the Argentine Constitution and the Argentine Law protect writers and publishers, so that no one steals their works, since they are understood that they are of ownership, it has the right over them, so much so expresses article 17 of the C.N., as article 2 of Law 11.723, by providing "the right of ownership of a scientific, literary or artistic work, includes for its author the power to dispose of it (…)". Article 5 of the aforementioned law establishes the term, for which there is that right, when providing “intellectual property on their works corresponds to the authors during their life and their right -holder heirs until seventy years counted from January 1 of the year Next to the author’s death ”, after this period, they will become public works, that is, they will belong to the State, and therefore anyone can acquire them. The law also contemplates anonymous works in its article 8 by providing “the intellectual property of anonymous works belonging to institutions, corporations or legal persons, will last fifty years counted since its publication."
In the event that the Association of Writers and Editors had initiated a trial against Google, for damages at civil headquarters, and in turn a criminal trial, according to article 172 of the Argentine Criminal Code, for disappointing to intellectual property rights , which in turn also mentions Law 11.723.
I consider that the Association of Writers and Editors had alleged the damage suffered because the Google company would reproduce its books, without its permission, which the Argentine law is clear in saying that only the owners of the leftovers can give permission to have their works (art. 2), In addition to Google, they would not be paying royalties for the reproduction and facilitation of their books to the network of the network. On the other hand, they could also sue Google criminally, for fraud on their intellectual property rights, in which case the judge may get to prison from 6 months to 1 year.
Google could defend itself using article 10 of Law 11.723, which, in its first paragraph says “anyone can publish for didactic or scientific purposes, comments, criticism or notes referring to intellectual works, including up to a thousand words of literary or scientific works or eight measures in the musicals and in all the cases only the parts of the text indispensable for that effect." . So Google could justify its actions in which it is publishing the works on the network for didactic or scientific purposes, according to the person who wants to use digitized books, and that in addition, being a search by key words, only The paragraph of where these keywords come out, complying with the requirements of the limit of article 10, to show up to a thousand words of the work.
Although I consider that the argument that Google could file is valid, some aspects of the network would not be taken into account (in its broader aspect, in the sense that millions of people have access to it, and Google does not control who it is each person), and with respect to not being fulfilled the principles of the copyright regime.
Given the possible allegation of Google, which I mention 2 paragraphs above, the Association of Writers and Editors could refute it alleging, that Google is a worldwide wanted, where they have millions of visits per day, within which millions a day could Being the Google Books space, and although Google is a large company, it does not have the ability to check a person per person that accesses the digitalized bibliographic material, since in its argument it mentions that they are for didactic or scientific purposes, it is impossible to know if The person who is accessing the digitized book, does so with some of those two purposes, or with a totally different purpose; On the other hand, the limit of the thousand words is not guaranteed, since Google mentions that only the paragraph of the search for the keyword is shown, well that paragraph contain more than a thousand words. On the other hand, it can also be refuted with the violation of the principles of copyright, these principles are:
- The author owns his work, from the moment of his creation. This principle is inferred from Law 11.723, mainly by article 5. This principle is the one that is most opposed to the hypothetical controversy, since Google would be passing over this right, which is also guaranteed in our Argentine Constitution, not asking for the consent of the authors and editors of the works that digitized.
- Patrimonial rights on copyright are as many as ways of use can be given to works. Article 2 of Law 11.723 mentions the possibility of having the work in any way. This does not entitle Google, to have the work automatically, without asking for consent, because also in this article it is mentioned that the power to dispose of the work is from the head of the same.
- Independence of patrimonial rights, that is that the author can dispose of the work as many times as he wants and the ways he considers pertinent. But this still does not entitle Google, that if the author or editor is selling his work, or is translating it; Google cannot dispose of it as you want, you must always ask for the consent of its headline (or headlines).
- It is the exclusive power of its owner authorizing third parties to use or exploit their work or transfer their property rights. In this case, Google would continue to transgress the standard, since it is the exclusive power of the holder, not the faculty of the third, the holder must give the consent.
- For third parties who acquired the work for some purpose, everything that is not expressly allowed by the head of the work is prohibited. This is in the event that Google, would have obtained permission to digitize them, and only for that, I could not share them on the network, or sell them, or anything, since the holder would have only given permission to digitize them.
There are some more principles, but I do not consider them pertinent for the development of the case.
The copyright protection system has two basic objectives: a) to give back the author for the creation of it (in the event that he decides to dispose of his work, he has the right to collect royalties); b) Encourage the creation of new works (if the authors of the works of the possible frauds that may cause damage are not protected, they will stop creating, at least the majority, because the creator is interested in protecting their fraud work).
Although the right of the holders is not absolute, since a term of 70 years post mortem is established, and at the international level 50 years post mortem; within the previous period it must be protected; And it is also established that the expression of the idea is protected, not the idea itself (because it is difficult to try), so in the hypothetical case that I am developing, the Google company would be condemned both in the civil sphere and the penalty, since it would cause damage to the holders of the works, and would have made fraud regarding copyright. I consider that the arguments sustained by writers and editors would have triumphed in the Argentine courts.
- Villalba, Federico A. and Palazzi, Pablo A.; 2016; "The case" Google Books ". Comparative analysis under the author’s law regime, and Argentina ”; On website: Thomson Reuters.
- Carranza Torres, Martín J.; 2011; "The basic principles of copyright"; On website: Thomson Reuters.