Access to Knowledge as a Bridge over the Troubled Waters of Copyright Fair Use -- From Jefferson to Mandela to Google

The copyright fair use doctrine is a key to increasing access to knowledge and decreasing the digital divide between information-rich and information-poor countries. Publishers have sued Google for copyright infringement for scanning the copyrighted books of the publishers into a digital database, so Google users can search the database for certain words to determine what books contain words of interest to the user. The Google litigation, however, is only a small piece of the larger access to knowledge puzzle. The larger issue is access to the books themselves, translated into the native languages of citizens of developing countries. Yet copyright stands in the way of translating copyrighted books – unless such translations would constitute fair use. This article analyzes the fair use doctrine, existing case law and scholarship on fair use and shows that the courts have recognized increased access as a factor favoring fair use. It then argues that increasing access by individuals to literary works they would otherwise not have access to results in a conclusion of fair use in the case of the Google Library Project litigation and the translation of books into the native languages of citizens of developing countrie