By Mukul Devichand
Reporter, BBC Law in Action
A Microsoft lawyer this week accused Google of "systematically violating copyright" with its plans to scan millions of books and journals from libraries around the world and make them available online. But Google argues its plans are legal.
Google is currently working on its project with six libraries
Google is not the only company scanning books and putting them on the internet. In a large underground room at the British Library in London, Microsoft has set up a system to scan in 100,000 books.
An automatic clamp holds the books in a cradle and turns the pages. Powerful cameras capture each page and a computer reads the text.
Google and Microsoft are, in effect, going head to head with projects which could make the whole of human literature available to search online.
Google has signed up the libraries of Oxford and Harvard Universities, among others. Microsoft has agreements with libraries including the University of California and the British Library.
Moral high ground
Sometimes publishers want their books included in these book searches . There is no legal problem with those, but books scanned in from libraries are much more controversial.
In libraries, Microsoft is only digitising older titles - in the British library, for example, they are only scanning books from before 1850. Books published after that may be in copyright, which means scanning them in could infringe the rights of authors.
Google has crossed this line by scanning some in-copyright works with its American partners, which is why Microsoft is claiming the moral high ground.
Microsoft complain that Google is being "cavalier". But Google believes it is legal under copyright law in the United States where Google is carrying out its book scans.
"We have created all of our products to comply with copyright law," says Jens Redmer, Director of Google Book Search Europe, in Google's first UK broadcast interview on the subject with the BBC Radio 4 programme Law in Action.
Microsoft has attacked Google for breaking copyright law
Google are relying on the American legal doctrine of "fair use", which is much more liberal than other legal systems. It has its origins in the right to freedom of speech in the US constitution.
American law has various tests for any "fair use" to pass - such as making sure it poses no commercial threat to anyone else.
"The majority of human knowledge is still not on-line, it's still stored in collections and libraries, at these great libraries around the world," says Jens Redmer.
Google argues that because they only show a very small extract of a copyrighted work on their book search, it is not against copyright law.
"For copyrighted books we only show a snippet except where we have a contract with the copyright owner," he says.
"For those books that we have digitised in some of the US libraries, that are still in copyright, we only show that there is a book out there on the market," says Redmer.
But in the US, the Authors Guild are suing Google for what they say is "massive copyright infringement".
A court will decide whether Google's book search complies with fair use. But Google's stand has been supported by one of America's most prominent copyright activists - Stanford Law professor Lawrence Lessig.
On his blog, Lessig points out that Google only offers "an index into the book".
"It doesn't give you a book to read," he says.
Copyright law is designed to protect the authors of books by making sure people cannot steal their work.
So a crucial question is whether book search engines like Google ultimately benefit authors by driving up book sales, or hurt the publishing trade.
There are mixed feelings among publishers. While many mainstream authors feel threatened by their texts being searchable on-line for free, some niche and unknown authors may have more to gain.
"All I think authors and publishers need are some sort of assurances and controls," says Mel Thomspon, a UK-based author of books on philosophy and ethics.
Libraries and authors are split over the benefits of digitising books
Thompson worries that unless there is a fair system in place to make sure authors get paid for writing, the quality of books written will deteriorate and Google's library programme will "cut its own throat long term".
But he also accepts that it might actually drive up sales - something he approves of.
Authors want to make sure that "if stuff is sold on the internet - and why shouldn't it be - at least they'll get fair remuneration compared to the print market," he says.
The controversy around Google book search is also being watched by lawyers around the world because everywhere, copyright law is being challenged by digital technology and it is unclear where the balance should lie.
In the UK, a recent government review was against adopting a more flexible, US-style system. But libraries are calling for a debate on the future of this law.
Lynne Brindley, chief executive of the British Library, wants a system that makes sure authors get paid but also allows library collections to be searched.
"We need to have a clear fair dealing arrangement," she says. "We would be a much poorer society if we were not to allow that in the digital age."
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