60 Pages Posted: 12 Jul 2007 Last revised: 24 Oct 2012
Date Written: July 10, 2007
Recent advances in digital technology have created the potential to make the vast stock of recorded knowledge searchable using sophisticated tools by anyone with an internet connection. As Google is in the process of demonstrating, it is now feasible to scan the collections of the major libraries of the world within a matter of years, convert these works into an immense searchable digital archive, and enable Internet users to find the most relevant materials easily. The principal impediment to this project, however, appears to be the inherent unpredictability of copyright law's fair use doctrine. Shortly after Google's announcement, leading publishers and authors filed suit alleging that Google's project infringed their copyrights.
The importance of these issues, and the fact that Congress did not foresee the possibilities for a universally accessible, comprehensive archive when it last considered the role of libraries, call for Congress to consider the larger public policy ramifications of digital archiving and search technology. The goals of collecting, preserving, and cataloging human knowledge predate copyright laws. As copyright law developed, it embraced these concerns. Drawing upon this history, this article examines the democratic, cultural, and economic dimensions of developing a comprehensive, searchable database of books and other library materials. It then analyzes the spectrum of institutional alternatives for promoting the goals of preserving and providing access to knowledge while safeguarding copyright law's incentives to create. The article recommends that Congress effectuate these goals through a carefully crafted package of safe harbors, measured liability exposure for technology vulnerable to piracy, and public involvement in the development and management of a searchable digital repository of copyrighted works. For the longer term, the Article recommends that Congress update the deposit requirement to provide for digital deposit of written works and plan for the development of a public comprehensive searchable archive. In the event that legislation is not forthcoming before the Google Book Search Project is litigated, the article shows that copyright law's long-standing access and preservation goals provide an important context for courts applying copyright law's fair use doctrine to digital archiving activities.
Keywords: Copyright, Access, Preservation, Google, Fair Use, Deposit
JEL Classification: K39, O34, O38
Suggested Citation: Suggested Citation
Menell, Peter S., Knowledge Accessibility and Preservation Policy for the Digital Age (July 10, 2007). Houston Law Review, Vol. 44, No. 4, 2007; UC Berkeley Public Law Research Paper No. 999801. Available at SSRN: https://ssrn.com/abstract=999801
By Peter Menell
By Mark Lemley