A few days ago, Google finally and comprehensively won a very long-running case brought against it by the Authors Guild which had claimed that Google’s Book Project – which operates as a digital library catalogue with a few snippets of content to contextualise and focus the search – amounted to a violation of copyright. In finding in favour of Google, the US Second Court of Appeals ringingly re-stated the purpose of copyright in terms that are useful and relevant here in New Zealand. Especially now that the IP chapter of the Trans Pacific Partnership ‘trade’ deal has turned back the clock and extended the copyright term from 50 to 70 years, among other negative IP commitments. A few copyright extremists have since come out of the woodwork to defend and applaud the TPP’s IP commitments.

To the US courts, ‘fair use’ is not an exemption to be grudgingly tolerated – it is the very purpose of copyright. Here’s how the court ruling put it in the Authors Guild case:

The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption . . . Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.

In other words, public access to an ever-increasing store of knowledge is the primary aim of copyright, and private gain is only a means to that end. (And arguably, 50 years of exclusive rights should be incentive enough for anyone.) Overall, the purpose of copyright is to promote the public good – not to maximise the length of time that an author can monetise their works. This was clearly articulated in the U.S. Constitution in its reference to copyright ie, “to promote the Progress of Science and useful Arts. . . .”

In a 1990s case involving an X-rated parody of the Roy Orbison song “ Oh, Pretty Woman” recorded by the 2 Live Crew rap group, the US Supreme Court came down solidly in defence of ‘fair use’ access for the purpose of parody. It proposed that an investigation of what constitutes ‘fair use’ should hinge on “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message…” And furthermore:

The majority reasoned "even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim." The Supreme Court then looked to the new work as a whole, finding that 2 Live Crew thereafter departed markedly from the Orbison lyrics, producing otherwise distinctive music.

The fact that 2 Live Crew made money by copying the original was not seen by the Supreme Court as a disqualifier, partly because it couldn’t be proved – or inferred – that this parody would do any market harm to the original. Parodies, the Court ruled, will rarely substitute for the original work, since the two works serve different market functions.

But back to the Google case. It is an important one for libraries, for researchers, and for the kind of analysis based on Big Data. As Mike Masnick at Techdirt has pointed out, the US court found that the use of the search function made the Google books programme ‘transformative’ – always a key factor in defending ‘fair use’ access rights:

The purpose of Google’s copying of the original copyrighted books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it. In addition, through the ngrams tool, Google allows readers to learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods. We have no doubt that the purpose of this copying is the sort of transformative purpose described in [the 2 Live Crew[case….

Was Google's snippet view of the contents ‘fair use’? Yes, the court ruled:

Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use

Arguably, these kind of searches will enable access and thus add value to the works in question – which always made the Authors Guild hostility a bit puzzling. More importantly, the fact that Google is a giant for-profit business, and is only carrying out its Google Book Project in order to make money is irrelevant, the US court ruled, as to questions of what is, or isn’t ‘ fair use.’ The court’s reasoning here was brilliantly expressed:

While we recognize that in some circumstances, a commercial motivation on the part of the secondary user will weigh against her, especially, as the Supreme Court suggested, when a persuasive transformative purpose is lacking... we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use. Many of the most universally accepted forms of fair use, such as news reporting and commentary, quotation in historical or analytic books, reviews of books, and performances, as well as parody, are all normally done commercially for profit. (My emphasis.)

Why is this case important? For one thing, it shows how utterly retrograde the TPP provisions on intellectual property really are. At a time when the US courts are making a case for the defence of “fair use” and “transformative” use” and are loudly re-stating the over-riding “public good” arguments for a limited copyright term, the US entertainment industry moguls – and their political cronies – are headed in the opposite direction, and are intent on maximising their commercial gains and elevating them above all other relevant issues.

The ‘free trade’ banner is being abused by these US companies to roll back the losses they’ve been suffering in court over the past decade. Regularly, the multinationals have lost even the civil actions they have taken – eg Viacom vs Youtube - over alleged copyright infringement.

Undaunted, these companies have now reverted to using the TPP to criminalise alleged copyright infringement and circumvention behaviours. The US courts may have stated the social value of a limited copyright term. Yet by using the TPP and chanting the mantra of ‘ free trade” the multinationals have effectively extended the copyright term. From 50 to 70 years. ‘Free trade’ is such a handy tool, when what you’re really doing is imposing restrictions on trade, competition and innovation.

Finally, the ability of art and science to access and use the store of knowledge as a platform for innovation is a crucial freedom in a healthy society. The last thing we should be doing is locking up knowledge and creativity for even longer terms. Within the phrase ‘intellectual property” too much emphasis is being placed on “property” as if it were private property that somehow sprang - unprompted and without precedent – from the brow of the creator.

The creative process isn’t usually like that, not even within the arts. No –one for instance, would wish to deny the genius behind a film like Goodbye Pork Pie. Yet it also had clearly recognisable genre elements – road movies, buddy movies, car race movies, and the whole Cannonball Run/Vanishing Point/Smokey and the Bear/Convoy list of cousins and ancestors. Part of the reason why audiences liked it so much was due to it being a Kiwi hybrid of those well-known conventions. Meaning : we all build on, and are inspired by what went before. Locking up copyright in perpetuity – or anything beyond 50 years – is to deny the debt that artists owe to the wellsprings of creativity.

People didn’t use to be such dogs-in-the-manger about these issues. Reportedly, Benjamin Franklin – no shrinking violet when it came to self promotion – refused to patent a stove that he’d invented, on the grounds that the invention was based on previous innovations — specifically, on theories of heat and matter articulated by Isaac Newton and the Dutch physician Hermann Boerhaave.

“That as we enjoy great advantages from the inventions of others,” Franklin wrote in his “Autobiography,” “we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.”

But that’s exactly {the] point: copyrights are utilitarian things. They generate money to pay a mortgage and buy groceries and continue working. Extended too far beyond their practical usefulness, copyrights not only contradict their original intent; they also wall creators off from the sources of their inventiveness.

Genius, as the writer Lewis Hyde once said, needs to “tinker in a collective shop”. In the misleading name of ‘free’ trade, the TPP is trying to shut that shop down to new entrants.

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