LIA3033 DIGITAL COPYRIGHT LAW

TUTORIAL QUESTIONS III

Weeks 8 – 10
- W9: do group activity but takyah present in class. Use tutor hour to plan, then create
digital poster on your topic, and upload on teams. Specification: takyah banyak, be brief
and precise, one page only

1. Read the case of Authors Guild v Google Inc No 13-4829 (2d Cir 2015) with the focus on
the following aspects/questions -

a. Briefly explain the Google Books Project in dispute.

- DR: this case illustrates the interests of the users (Google) and CR owners (authors guild)

- Refer to page 2 of the case first paragraph.

b. Summarize the law on fair use as explained by the court in the judgment. (ask thamil for
the answer)
- S107 of the copyright Act US
- Use the 4 factor
- 1st factor; the court clarified that the more transformative the secondary work,
the less will be the significance of other factors like commercialism tht may weigh
against a finding of fair use. The court also rejected the contention that
commercial motivation should outweigh a convincing transformative purpose
and absence of significant substitutive competition with the original. The court
also agrees that the overall Google profit motivation should not be the reason to
deny fair use over its highly convincing transformative purpose.
- 2nd factor: In this case the court does not consider it as a boost to Google’s claim
of fair use. If one or all of the plaintiff works were fiction, nothing should be
different. The second factor favors fair use not because of Pf’s works are factual,
but because the secondary use transformative provides valuable information
about the original rather than replicating protected expression in a manner that
provides a meaningful substitute for the original.

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

- 3rd factor: the amount and substantiality of the portion used in relation to the
copyrighted work as a whole. Finding of fair use is more likely to when small
amounts or when the passage is less important are copied compared to copying
an extensive important part from the original work.
- In HathiTrust – on 3rd factor the court state because it was reasonable for the
HathiTrust Digital Library to make use of the entirety of the works in order to
enable the full text search function hence the copying is was not excessive. The
court then stated that if Google copied less than the totality of the original its
search function could not advise searchers reliably whether their search term
appears in a book.
- 4th factor – the effect of the copying use upon the potential market for or value of
the copyrighted work. Here the court focuses on whether the copy brings to the
marketplace a competing substitude for the original or its derivative so as to
deprive the rights holder of significant revenue bcause of the likelihood that
potential puchasers may opt to acquire the copy in preference original.
- The court also state that they regonise how the snippet function can cause some
loss of sales but then if its only just some possibility or even the probability or
certainty of some loss of sales does not sufficice to make the copy an effectively
competing to the point that it will take the rights of the holder in the original
copy. So means that need to have a meaningful and significant effect upon the
potential market for or value of the copyrighted work.
- The court conclude that Google’s making of a complete digital copy of Plaintiff’s
works for the purpose of providing the public with its search and snippet view
functions is a fair use and does not infringe Pf’s copyrights in their books.
- In the HathiTrust, the court found that the 4 th factor favour the df and supported
a finding of fair use because the ability to search the text of the book ti
determine whether it includes selected words does not serve as a substitute for
the books that are being searched.

c. The court observed the current case differs from the case of Authors Guild Inc v
HathiTrust 755 F 3d 87 (2d Cir 2014). Explain the differences between the two.

First, HathiTrust did not “display to the user any text from the underlying copyrighted work,”
755 F.3d at 91, whereas Google Books provides the searcher with snippets containing the word
that is the subject of the search.
Snippet View: Plaintiffs correctly point out that this case is significantly different from HathiTrust
in that the Google Books search function allows searchers to read snippets from
the book searched, whereas HathiTrust did not allow searchers to view any part of the book.

Second, HathiTrust was a nonprofit educational entity, while Google is a profit-motivated

commercial corporation.

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

Google’s commercial motivation

- Google is distinguished this case from HathiTrust, as the defendant in that case was a
non-profit entity founded by, and acting as the representative of, libraries. Although
Google has no revenues flowing directly from its operation of the Google Books
functions, Plaintiffs stress that Google is profit-motivated and seeks to use its dominance
of book search to fortify its overall dominance of the Internet search market, and that
thereby Google indirectly reaps profits from the Google Books functions.
- First source: Congress’s specification in spelling out the first fair use factor in the text of §
107 that consideration of the “purpose and character of the [secondary] use” should
“include[e] whether such use is of a commercial nature or is for nonprofit educational
purposes.”

d. How did the court address the question whether Google Books was a ‘fair use’ of the
relevant copyright works?
(Page 37)
- Google does not infringe the pf’s copyright in their works by making digital copies of
them, where the copies are used to enable the public to get information about the
works such as whtehr and how often they use specified words or terms.
- The copyrighting resulting frm the pf’s authorship of their works does not include an
exclusive right to furnish the kind of information about the works that Google programs
provide to public. Hence the copyright that protect the of works does not include an
exclusive right to supply such information through query of a digitized copy.
- The court also state that Google does not convert the authors book into digital from and
make it accessible to the public but Google just merely allow the access to the extent of
permitting the public to search for the very limited information accessible through the
search function and snippet view. Hence, the program does not allow access in any
substantial way to a book’s expression content.
(Page 44) - Google Distribution of Digital Copies to Participant Libraries
- Pf claim that Google distribution to a participating lib fo a digital copy of pf’s books is not
a fair use and exposes the pf to risk of loss if the lib uses its digital copy in an infringing
manner. But then the court state that the contract between Google and the participating
lib commits the library to use its digital copy only in a manner that is consistent with the
copyright law and to take precautions ti prevent dissemination of their digital copies to

the public at large.

- Google creation for each lib of a digital copy that lib already owned book in order to
permit tht lib to make a fair use through provision of digital searches is not an
infringement. If there’s any parties that should be liable for any infringement here would
be the participating libries not Google cause Google merely just providing the service.
The imposing of liability to Google should not happen just because of a mere speculative

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

possibility rhat the lib may fail to guard sufficiently against the dangers in hacking as it is
contractually obligated to do.

ANSWER FOR D: (DISCUSS THE 4 FACTOR)

- 1st factor; the court clarified that the more transformative the secondary work,
the less will be the significance of other factors like commercialism tht may weigh
against a finding of fair use. The court also rejected the contention that
commercial motivation should outweigh a convincing transformative purpose
and absence of significant substitutive competition with the original. The court
also agrees that the overall Google profit motivation should not be the reason to
deny fair use over its highly convincing transformative purpose.
- 2nd factor: In this case the court does not consider it as a boost to Google’s claim
of fair use. If one or all of the plaintiff works were fiction, nothing should be
different. The second factor favors fair use not because of Pf’s works are factual,
but because the secondary use transformative provides valuable information
about the original rather than replicating protected expression in a manner that
provides a meaningful substitute for the original.
- 3rd factor: the amount and substantiality of the portion used in relation to the
copyrighted work as a whole. Finding of fair use is more likely to when small
amounts or when the passage is less important are copied compared to copying
an extensive important part from the original work.
- In HathiTrust – on 3rd factor the court state because it was reasonable for the
HathiTrust Digital Library to make use of the entirety of the works in order to
enable the full text search function hence the copying is was not excessive. The
court then stated that if Google copied less than the totality of the original its
search function could not advise searchers reliably whether their search term
appears in a book.
- 4th factor – the effect of the copying use upon the potential market for or value of
the copyrighted work. Here the court focuses on whether the copy brings to the
marketplace a competing substitude for the original or its derivative so as to
deprive the rights holder of significant revenue bcause of the likelihood that
potential puchasers may opt to acquire the copy in preference original.
- The court also state that they regonise how the snippet function can cause some
loss of sales but then if its only just some possibility or even the probability or
certainty of some loss of sales does not sufficice to make the copy an effectively
competing to the point that it will take the rights of the holder in the original
copy. So means that need to have a meaningful and significant effect upon the
potential market for or value of the copyrighted work.
- The court conclude that Google’s making of a complete digital copy of Plaintiff’s
works for the purpose of providing the public with its search and snippet view
functions is a fair use and does not infringe Pf’s copyrights in their books.

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

- In the HathiTrust, the court found that the 4 th factor favour the df and supported
a finding of fair use because the ability to search the text of the book ti
determine whether it includes selected words does not serve as a substitute for
the books that are being searched.
- Cannot consider only one factor. Need to consider all 4 factor before making a decision
on the case.
- It has enable a new way. There is transformative in Google Books. All 4 factors are really
interrelated. But this is not mathmatical. Even after considering the 4 factors, it still need
the court to balance the interests.

e. How, in your opinion, the decision in Authors Guild v Google Inc No 13-4829 (2d Cir
2015) may be relevant to the legal position of text or data mining (TDM)?
- Preliminary
- Def of text mining: the process of transforming unstructured text into a
structured format to identify meaningful patterns and new insights
- Def of data mining: the process of sorting through large data sets to identify
patterns and relationships
- Difference: While data mining handles structured data – highly formatted data
such as in databases – text mining deals with unstructured textual data – text
that is not pre-defined or organized in any way such as in social media feeds.
- Purpose:
- Academic: allows researchers to work through larger amounts of information
than they would be able to do manually
- Healthcare: used to extract valuable information from medical literature
which allows for quick solutions to medical problems
- Customer service: Mining is used to identify key concerns of customers from
customer surveys, online reviews, support tickets, and social media profiles.
Allows for more effective customer services.
- Many more
- Effect of Authors Guild case
- TDM may not be considered copyright infringement even when it mines
copyrighted works and the fair use doctrine can apply. This will depend on what
TDM is being used for and whether the public interest is significant enough

2. Read the US District Court decision in Hachette Book Group Inc v Internet Archive (Case
1:20-cv-04160, dated 24.3.2023) and answer the following questions –
a. Briefly explain the Open Libraries and National Emergency Library operated by the
defendants in this case.
 Open Library – non-profit organization that buys or accepts donations of print books
primary from Better World Books (a for-profit used bookstore that is affiliated with
Internet Archive (IA) and the Open Lib. Open Lib then will send the books to IA

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

scanning centers where operators turn and photograph each page using a book-
digitization device called a “Scribe”. Then the printed books are stored in double-
stacked shipping containers and not circulated. This Open Lib is where the IA works
with other physical libraries. With that anyone can just become a patron of IA then
can borrow up to 10 eBooks at a time for 14 days each just by submitting a valid
email address. Patrons can read books they have checked out on IA’s bookreader
web browser platform or can download high quality encrypted PDF or ePub version
of the book. This can secure the downloadable version of the book with software
that prevents the patron from copying, accessing or distributing the book after the
loan period.
o IA: applies the one-to-one model of Controlled Digital Lending which means
the lending is relative to how many physical copies present in IA’s collection.
This was probably to mirror scarcity of the physical books and limit liability
 National Emergency Library – this was created due to Covid-19 with the intention
that it will just run temporarily. During this NEL, IA has lifted the technical controls
enforcing its one to one owned-to-loaned ration and allowed up to 10k patrons at a
time to borrow each book, and there was no longer a wait-list to borrow the books.

b. Which exclusive rights of the plaintiffs were alleged to have been infringed by the
defendants?
 The pf alleged that the df has infringe the pf’s right by scanning print copies of the
Workd in Suit and lending the digital copies to users of the defendant’s website
without pf’s permission.
 The exclusive rights to publish books in print and digital format, including electronic
copies of books or “eBooks” - Publishers and authors are paid for sales of each
format in which a book is published.
 Distribution rights and public performance rights and display rights
c. Summarize the court’s finding on the purpose and character of the use factor.
 Purpose and character of the use factor is the first factor among the 4 factors.
 The first factor – the purpose and the character of the use, including the whther such
use is of a commercial nature or is for nonprofit educational purposes. In this case
the court consider the extent to which the secondary work is transformative. The
court state that there is nothing transformative about IA’s copying and unauthorized
lending of the Works in Suit. IA;s ebooks do not add something new with a further
purpose or diff chracter, altering the original content with new expression, meaning
or message.
d. Briefly distinguish the present case from Google Books, HathiTrust, and Sony cases
respectively.

Google Books

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

- In Google case, it scanned in order to create a databased that included a “snippet view”
search function that allowed readers to view a few lines of text containing searched-for
terms.
- The snippet view only show the searcher “just enough context surrounding the searched
term to help the searcher evaluate whether the book fell within the scope of the
searcher’s interest without revealing so much as to threathen the author’s copyright
interests.

HathiTrust
- The df in this case scanned whole copies of millions of books including those protected
by valid copyrights to create a database on which general public could search for
particular terms across the scanned work.
- The court here also held that because of the result of the word search is different in
purpose, character, expression, meaning and message from the page (and the book) frm
which it is drawn.
- Importantly the database did not allow users to view any portion of the books they were
searching and therefore unlike IA’s website, did not add into circulation any new, human-
readable copies of any books or merely repackage or republish the originals.
- On the first fair factor, the court here state that it is different from the current case
where in HathiTrust’s endorsement of this distribution of complete was carefully limited
only to print-disabled readers. But then IA ebboks are available to the general public.
Sony Corp. Of Am. V Universal City Studio
- In this case, Sony was accused of contributory copyright infringement based on its sale
of Betamax machines to customers who could then copy programs to be viewed later
even though the customers could have viewed the programs for free when they were
broadcast.
- In this case the Supreme court held that customers who used Betamax machines to
time-shift satistfied the first fair use factor, because “time-shifting for private home use”
was a “noncommercial, nonprofit activity” and the betamax machine merely enable a
viewer to see such work which he had been invited to to witness in its entirety free of
charge.
- Unlike Sony which only sold the machines, IA scans massive number of copies of books
and makes it available to Patrons rather than purchasing ebook licenses from the
Publishers. Sony only provided a neutral tool that was used to infringe and had no
control over how it was used, but IA did the infringing act/scanning the books
themselves. (pg 23 and 24)
- Although IA has the right to lend print books it lawfully acquired,it does not have the
right to scan those books and lend digital copies en masse.

e. Explain the court’s finding on the fourth fair use factor.

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

- Fouth fair use factor – the effect of copying use upon the potential market for or value of
the copyrighted. This factor focuses on whether a secondary use “usurps the market for
the original by offering a competing substitute.
- Copyright holders are entitled to demand a royalty for licensing others to use its
copyrighted work and the impact on potential licensing revenues is a proper subject for
consideration in assessing the fourth factor.
- IA offers users complete ebooks editions of the Works in Suit without IA’s having paid
the Publishers a fee to license those ebooks and it gives libraries an alternative to buying
ebook licenses from the Publishers.
- IA brings to the marketplace a competing substitute for library editions of Works in Suit,
unslurping a market that properly belongs to the copyright-holder.
- The court also states that it is irrelevant to assesing market harm in this case that IA and
its Partner Libraries once purchased print copies of all the Works in Suit. The publishers
do not price print books with the expectation that they will be distributed in both print
and digital formats.
- The publishers are entitled to revenue from all formats of the Works in Suit whetehr IA
lawfully acquired the Works in print first.

Activity
Work in 3 groups to study the new copyright law or bill in one of the following jurisdictions
compelling internet platforms to negotiate with news organizations for use of news content and
the debates relating to the new law/bill.

a. Australia
b. United States
c. European Union (not including the UK)

3. Read the case of Shazam Productions Ltd v Only Fools The Dining Experience Ltd and
others [2022] EWHC 1379 and discuss the following –
a. Briefly explain the facts and copyright disputes in the case.
- The plaintiffs purchased exclusive rights to broadcast in Germany a television interview
with a woman who had achieved temporary celebrity as a result of becoming pregnant
with octuplets. The defendants broadcast in England a current affairs programme on the
topic of chequebook journalism, in the course of which they showed an extract recorded
from the plaintiffs' exclusive interview, accompanied by a visual representation of the
name of the plaintiffs' programme and their company logo.
b. Summarize the court’s finding on copyrightability of characters.
c. Explain the court’s interpretation on section 30A of the UK CDPA and its application, or
non-application, in the case.
d. How was the ‘fairness’ of the dealing determined by the court?

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LIA3033 DIGITAL COPYRIGHT LAW
TUTORIAL QUESTIONS III

e. How does section 30A of the UK CDPA differ from section 13(2)(b) of Malaysian
Copyright Act 1987, if any?

4. Read the case of Pro Sieben Media A G v Carlton UK Television Ltd [1999] 1 WLR 605;
[1998] All ER (D) 751 and answer the following –
a. Summarize the facts and copyright questions in this case.
b. Explain the meaning and scope of ‘criticism or review’ and ‘reporting current events’.
c. Explain the court’s finding on whether the dealing was for criticism or review.
d. Explain the court’s decision on whether the dealing was for reporting current events.

5. Read the case of AGL Energy Ltd v Greenpeace Australia Pacific Ltd (2021) 395 ALR 275;
(2021) 159 IPR 336; [2021] FCA 625 and address the following-
a. Summarize the facts and copyright issues arising in the case.
b. Explain the court’s determination on whether Greenpeace’s use of the modified AGL
logo had a parodic or satiric purpose.
c. Explain the court’s finding on ‘fairness’ of such use as mentioned in (b).
d. Summarize the court’s decision on the fair dealing for criticism or review under
section 41 of the Australian Copyright Act 1968.

6. With reference to the case law in Q3, Q4, and Q5 above, consider and discuss how these
cases and their principles may be relevant and applied to practices in the digital
environment.

BY SIK CP