So Google, at the behest of the European Union, is compiling what could be
the largest personal database the world has ever seen. Does this sound a
little Orwellian to anyone?
The privacy implications of Google’s actions should concern just about
every user of the search engine and internet. As rightly pointed out by
activist Cory Doctorow, giant databases of personal information could be
used to harass individuals saying unpalatable things and, more generally,
are possibly a major threat to freedom. Nevertheless, from a copyright
perspective, I wonder whether Google’s giant database of personal
information would be granted protection? And if so, is such protection
warranted?
Without understanding exactly how Google is ‘selecting’ and ‘arranging’
the personal information they collect, it is difficult to accurately
assess whether such a database would be afforded copyright protection. In
order for a database to be deemed worthy of protection, it must meet the
originality standard annunciated in Law Society of Upper Canada v. CCH
Canada (“an original work must be the product of an author’s exercise of
skill and judgment…(and) not be so trivial that it could be characterized
as a purely mechanical exercise”). Therefore, in order for a database to
be awarded copyright protection, it requires more than the industrious
collection of information. Personally, I believe Google would be granted
copyright protection for their personal information database. Firstly,
the process undertaken by Google to gather their information is one that
draws from different internet sources (Google searches, website browsing
habits, etc…); such process would probably be considered more than
industrious collection. Secondly, I would assume that the arrangement of
the information collected, considering the multitude of information
gathered and the innovative nature of companies like Google, is probably
done in a non-obvious manner. However, maybe the more important question
is should it qualify for protection?
The logical starting point of any discussion as to whether specific works
deserve copyright protection should begin at the purpose of copyright law
as defined in the applicable Act. Oh wait, sorry I forgot, Canada, unlike
our neighbours to the south, decided to omit that little piece of
information from our Copyright Act. Okay, then let’s start at the most
generally accepted rationale for copyright protection instead: the
economic justification (note this is the well established underlying
foundation for the American Copyright Act). Such justification states
that copyright protection, and the economic incentives it provides, is the
most effective method for a society to increase their pool of ideas and
knowledge. Okay then, can anyone tell me how Google compiling a database
for their own personal use, and (probably) never publishing it, or
releasing it to the public, will increase society’s pool of knowledge and
ideas? Exactly, it doesn’t.
The reality is that while Google’s database may be granted copyright
protection, based upon the generally accepted rationale for copyright
protection it doesn’t deserve it. Firstly, the economic incentives
provided by copyright protection was not the driving force behind Google
creating this giant database of personal information; it was purely a
business decision. By collecting and complying personal information about
their customers, Google will be able to better serve the needs of their
users. As a result, Google will be able to increase their usership,
thereby increasing their advertising revenues; such is the Google’s
financial reward for complying information, not financial rewards derived
through copyright protection exploitation. Secondly, as previously
alluded to, this database will probably never be published or licensed, so
in essence the copyright regime is protecting a work without giving
society any addition to their pool of knowledge or ideas.
This is a prime example of copyright law going too far. I understand that
as a multitude of new technological innovations emerge (such as the
internet and Google), balancing the interests of all the stakeholders of
the copyright regime, and determining where to draw the lines regarding
the protection of specific works, becomes increasingly difficult.
However, we must draw these lines in a manner consistent with the purpose
(or most recognized purpose) of the copyright regime. Oh yeah, it would
also help if maybe Canada explicitly stated a purpose for our copyright
scheme as well.