US Court Rules On Fair Use For Blind Users, Digitisation, Amid Treaty Talks

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Coinciding with the marathon negotiations at the World Intellectual Property Organization for a potential treaty for the visually-impaired persons, a United States court handed down a ruling this month that goes in favour of copyright exceptions in the digitisation of books for the purposes of preservation, text search and access for the blind.

[Update:] Authors Guild Appeals Loss in HathiTrust Book Scanning Case

In a decision [pdf] penned on 10 October by Federal District Court Judge Harold Baer, Jr. of the Southern District of New York, the five American universities that are leading the cutting-edge HathiTrust project have won in the copyright infringement suit filed on 12 September by the Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ) and eight individual authors.

The five university defendants are University of Michigan, University of California, University of Wisconsin, Indiana University and Cornell University. The HathiTrust partnership, which counts the five universities as members, is working to establish a repository to archive and share the digitised collections of partner institutions.

Judge Baer ruled that the digitisation efforts of the universities, particularly for purposes of full-text searches, preservation and access for people with print disabilities, are permitted under the doctrine of fair use, a limitation to copyright codified in Section 107 of the US Copyright Act. The section lists four factors for the courts to consider in determining whether a particular use is fair or not.

“The enhanced search capabilities that reveal no in-copyright material, the protection of defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA (Americans with Disabilities Act) protect the copies made by defendants as fair use…,” read the decision.

The decision also noted that the digitisation efforts of the universities make for “transformative use,” supporting the copyright limitation defence, because the copies “serve an entirely different purpose than the original works” and “the purpose is superior search capabilities rather than actual access to copyrighted material.”

Further, the court agreed that print-disabled individuals using the digitised services of the schools comprised a “tiny minority,” and hence the commercial intent of the project is “almost impossible to fathom.”

The decision did not touch on the orphan works (for whom the copyright owner cannot be found) component of the HathiTrust project, but is seen by stakeholders as providing an insight on a separate slow-moving lawsuit filed by the Authors Guild against Google for the search engine’s Google Book Search Service. The five universities have agreements with Google, allowing the latter to create digital copies or works in their libraries.

Several academics and organisations have already released statements on the decision such as the Electronic Frontier Foundation, here, and James Grimmelmann of the New York Law School, here.

For one, Prof. Kenneth Crews of Columbia University in a post for the Copyright Advisory Office of the school wrote that the ruling is “enormously important for the continued vitality of HathiTrust,” with the opinion of Judge Baer offering “an analysis of fair use that will be helpful in the evaluation of many future projects, especially in the context of libraries, education, and research.”

Maricel Estavillo may be reached at

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