Full-Text Database for Disabled Persons Protected by Fair Use Doctrine, According to Second Circuit

Authors: Julia Anne Matheson, Danielle Wright Bulger

The fair use doctrine allows for the creation of a full-text searchable database of copyrighted works to assist the disabled and preserve works, according to the United States Court of Appeals for the Second Circuit.

On June 10, the court decided Authors Guild, Inc. v. HathiTrust, a case involving the HathiTrust Digital Library (“HDL”), a repository of digital copies of books maintained by colleges, universities and other non-profit institutions. 2014 WL 2576342, at *1 (2d Cir. June 10, 2014). Through the HDL repository, the general public can conduct a search to find the page number where a specific term is found, and how many times the term appears in the book. Id. If however someone has a disability rendering them unable to read print material, the disabled user can access the full-text version of the book in the repository through adaptive technologies capable of magnifying text or converting the full-text into spoken words. Additionally, the HDL allows members, like university libraries, to make replacement copies of the work if the member already owned an original copy and the copy was “lost, destroyed, or stolen…and [would be] unobtainable at a ‘fair’ price elsewhere.” Id.

Twenty authors and authors’ associations brought suit against HathiTrust and member universities claiming copyright infringement and seeking declaratory and injunctive relief. Id. at 2. On appeal, the Second Circuit affirmed the district court’s decision that three of the US authors’ associations lacked standing because copyright holders cannot select third parties to bring suit on their behalf. Id. at *4. Conversely, the court determined that four, non-US authors’ associations did have standing because foreign law confers upon them exclusive rights to enforce copyrights. Id.

In evaluating the fair use factors articulated in Section 107 of the Copyright Act, the court concluded that: 1) the creation of a full-text searchable database “is a quintessentially transformative use;” 2)  the nature of the copyrighted work is not dispositive because the creative work is being used for a transformative purpose; 3) copying of the text was not excessive because in order to enable the full-text search function HDL has to use the work in its entirety; and 4) no harm to any existing or potential traditional market exists because the defendant libraries take extensive security measures to ensure hackers are unable to obtain unauthorized access to the books stored in the HDL. Id. at *7-9.

The court remanded the issue concerning the storage of digital copies of the book for future generations to the district court for a determination on standing. Id. at 14.

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