The question of what constitutes ‘fair use’ is likely to be at the centre of a new case springing from the seven-year quest by Google and a group of American universities to digitise, and make available online, the universities’ massive book collections

On September 12 this year, the Authors Guild in the USA, the Australian Society of Authors, the Quebec Union of Writers and a number of individual authors filed suit against a partnership of five American universities and research libraries (the same universities involved in the Google Books case), over what the plaintiffs described as “one of the largest copyright infringements in history” (Complaint, US District Court, Southern District of New York, 12/9/2011, p.4)

According to the Complaint: “The Universities have directly caused millions of works that are protected by copyright holders to be scanned, stored in digital format, repeatedly copied and made available online for various uses. These actions not only violate the exclusive rights of copyright holders…but, by creating at least two databases connected to the Internet that store millions of digital copies of copyrighted books, the Universities risk the widespread, unauthorised and irreparable dissemination of these works.” The authors involved in the suit claim that copying of protected works without permission has been undertaken not only by Google (whose sophisticated scanning technologies and plentiful staff facilitated the initial and most costly part of the mass digitisation project) but also the universities and HathiTrust (which have created digital copies of works using their own equipment and personnel)

The five universities named in the suit – led by the University of Michigan, with one of the largest university libraries in the US – have created and joined a partnership of 50 research institutions called HathiTrust, which has begun combining the digital libraries of the members into a shared repository. The HathiTrust Digital Library already contains close to 10 million digital volumes, with an estimated 73 per cent being protected by copyright

There is also an orphan works issue at play, with four of the universities having announced their participation in HathiTrust’s Orphan Works Project, an initiative to identify and make available online to students, faculty and library patrons full copies of so-called ‘orphan works’. The first set of HathiTrust orphans is scheduled to become available in full text in mid-October (Complaint, as above, p4, p7)

The suit is particularly interesting from an Australian perspective as both the Australian Society of Authors (ASA) and Angelo Loukakis – author of the award-winning fiction For the Patriarch and executive director of the ASA – are amongst the plaintiffs. Loukakis is in good company, with individual plaintiffs including novelist Fay Weldon and Pulitzer Prize-winning historian T.J. Stiles

To read more about this story go to: For inquiries relating to publishing and copyright law please contact Adam Simpson