Accessibility Without Piracy: Reinvigorating Copyright's Deposit and Catalog Functions

Accessibility without Piracy: Reinvigorating Copyright's Deposit and Catalog Functions in the Digital Age

Peter S. Menell

University of California at Berkeley School of Law

Copyright law has long recognized the value of public accessibility of copyrighted works to the promotion of knowledge and the arts. From ancient origins in the ill-fated Library of Alexandria through the middle ages and into modern copyright regimes, societies have long sought to preserve, catalog, and make accessible knowledge through searchable catalogs and repositories. The 1790 Copyright Act, the first federal U.S. copyright statute, recognized the need for informing the public of the catalog of copyrighted works and required that authors publish the title of registered works in newspapers. Since 1846, the United States has required that a copy of all registered works be deposited in the Library Congress so to create a vast public knowledge repository. The 1909 Act imposed upon the Register of Copyrights the duty to index all copyright registrations and assignments and print a catalog of the titles of registered and deposited works. Yet inherent physical constraints – such as practical access impediments to the Library of Congress and limitations on searchability of works – have made such catalogs and repositories useful to only a relatively small and privileged subset of the society.

The Internet has demonstrated that a nearly limitless amount of information can be stored and effectively sifted through the use of modern search engines. Yet much of the most valuable knowledge – copyrighted works – lies outside of the Internet's reach due to the costs of digitizing and copyright limitations. Balancing incentives to create works of authorship and access to such works has long been at the heart of copyright policy. Even today, the costs of digitizing and indexing the vast stock of literary knowledge exceeds the budget of the Library of Congress.

Google's plan to digitize and make searchable the vast stock of knowledge contained in several leading libraries realizes the aspirations of the copyright system. By carefully limiting access to the minimum of what is needed to identify and screen potentially useful sources, Google poses little, and in any case, manageable, risk to copyright owners. At the same time, Google search technology could well expand the market for many works that have been lost in the vast sea of publications. As Amazon.com, eBay, and Netflix have proven, the demand for even obscure works is cumulatively quite large if consumers can find them. Google's technology promises to open a vast window into recorded knowledge by enabling Boolean searches of the full range of recorded knowledge. It would also provide strong incentives for advances in ranking technology, making search ever more efficient and hence valuable.

Whether the Google plan fully squares with the complex and ambiguous rules and doctrines of current copyright law is not easily determined. In order to enable Boolean searchability, Google must scan copyrighted works into a digital database. Despite efforts to avoid controversy – by offering copyright owners a right to opt-out, limiting the amount of material that would be displayed, and providing free promotional information for publishers – both the Authors' Guild and publishers have sued, alleging that Google must obtain permission in order to scan works of authorship. The fate of this tantalizing technology thus rests in the hands of the federal jurists applying notoriously ambiguous copyright doctrines.

This project explores how copyright law can best effectuate the dual and sometimes conflicting goals of promoting incentives to create and access to works in the age of powerful, digital search technology. Part I explores the origins of copyright law's access provisions, focusing on the history and evolution of the deposit and cataloging functions. It then surveys the means available in the digital age for cataloging and searching works of authorship, as well as the risks to copyright owners and impacts on actual and potential markets for copyrighted works of scanning copyrighted works into a universally accessible, searchable digital database. Part III examines the Google litigation and assesses the contours of copyright liability, statutory exemptions, and the fair use defense. It concludes that Google's plan should pass muster under existing law, although the judicial process will probably take years to unfold. Part IV takes a broader policy perspective on the issues raised by digital catalog and search technology. It argues that the Google plan may well be overly cautious from the standpoint of the public at large and that Congress can best effectuate the access goals of the copyright system without sacrificing protection or incentives to create through a carefully crafted package of safe harbors, measured liability for technology vulnerable to piracy, and public involvement in the development and management of a searchable digital repository of copyrighted works.