Long Awaited Supreme Court of Canada Decision on Copyright in Legal Reasons

On March 4th, the Supreme Court of Canada released a landmark decision, CCH Canadian Ltd v Law Society of Upper Canada, overturning earlier rulings that the Law Society of Upper Canada had infringed copyright in certain publishers' works. The Law Society maintains and operates the Great Library, a research library with one of the largest collections of legal materials in Canada. It provides a request-based photocopy service for authorized researchers and self-service photocopiers for use by its patrons. The respondent legal publishers had brought copyright infringement actions against the Law Society in 1993. The first issue addressed concerned the publishers' materials and whether or not they were "original works protected by copyright." The Court held that publishers' headnotes, case summaries, topical indices and compilations of reported judicial decisions are all "original" works and are protected by copyright. The Court took the middle ground between existing competing views when determining the meaning of "original" in copyright law. It held that for a work to be "original" within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. "What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment", and the skill and judgment "must not be so trivial that it could be characterized as a purely mechanical exercise." The next issue addressed by the Court was whether the Great Library had authorized copyright infringement by maintaining self-service photocopiers and copies of the publishers' works for its patrons' use. The Court found that there was no evidence that the photocopiers had been used illegally, that the posting of a notice above the photocopiers was not an express acknowledgement that the photocopiers would be used in an illegal manner and that the Law Society lacked sufficient control over the library's patrons to permit the conclusion that it sanctioned the infringement. It held that "[a] person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law." Finally, the Court addressed the issue of "fair dealing" with regards to the Law Society's custom photocopy service. Section 29 of the Copyright Act sets out a fair dealing exception to copyright infringement that is available to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. The Court ruled that "research" must be given a large and liberal interpretation and that it is not limited solely to non-commercial or private contexts. The case will continue to be examined carefully for its broader implications beyond the legal publishing industry, especially regarding the extent of copyright protection to be afforded to compilations of data. For the full text of the Supreme Court of Canada decision, see: www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html. For a news item about the implications the case may have on business related to the Internet, see: http://makeashorterlink.com/?O15522CB7. Summary by: Clare McCurley If you have questions about how changing copyright law in Canada may affect your business, contact Michael Erdle (merdle@dww.com).