CCH Canadian Ltd. v. Law Society of Upper Canada 2004 SCC 13 is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canada. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing. The Supreme Court Building in Ottawa The Supreme Court of Canada is Canadas highest court and is located in the capital city of Ottawa. ... Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations. ... The Law Society of Upper Canada (LSUC) is responsible for the self-regulation of lawyers in the province of Ontario. ... Copyright infringement is the unauthorized use of copyrighted material in a manner that violates one of the copyright owners exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works that build upon it. ...

Background

Since 1954 the Law Society of Upper Canada offered request-based, non-profit photocopying services to students, members, judiciary, and authorized researchers at their "Great Library"[1] in Osgoode Hall. The Law Society provided single copies of legal articles, statutes, and decisions to those who requested. 1954 was a common year starting on Friday of the Gregorian calendar. ...

The Law Society argued that the service they offer is necessary to providing equal access the library’s collection of legal materials. Many of the materials are non-circulating which makes access to the original copies difficult to those who do not work near-by.

Three of the largest publishers of legal sources, CCH Canadian Limited, Carswell Thomson Professional Publishing and Canada Law Book Inc., sued the Law Society for copyright infringement.

Ruling

The unanimous judgment of the court was given by Chief Justice McLachlin. The Court held that the Law Society did not infringe any copyright when single copies of decisions, statutes, regulations, etc. were made by the library. The Right Honourable Chief Justice Beverley McLachlin The Right Honourable Chief Justice Beverley McLachlin, PC , LL.B. , MA , BA (born September 7, 1943) is the Chief Justice of Canada, the first woman to hold that position. ...

The judgement answers four questions:

1. Are the Publishers' Materials "Original Works" Covered by Copyright?
2. Did the Great Library authorize copyright infringement by maintaining self-service photocopiers and copies of the publishers' works for its patrons' use?
3. Were the Law Society's dealings with the publishers' works "fair dealing[s]" under s. 29 of the Copyright Act?
4. Did Canada Law Book consent to have its works reproduced by the Great Library?

In referencing Théberge v. Galerie d'Art du Petit Champlain inc., McLachlin emphasized the importance of balancing “the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”(para. 23) Copyright Act of Canada is Canadas federal statute governing copyright. ...

To answer the first issue, the Court looks at what is considers the meaning of “original work”. McLachlin rejects O’Connor’s “minimal degree of creativity” test from the US Supreme Court case of Feist Publications Inc. v Rural Telephone Service but agrees with O’Connor’s assessment that the “sweat of the brow” approach and finds it too low a requirement. Instead, she takes the middle ground by requiring “that an original work be the product of an exercise of skill and judgment”.(para 24) As well, “[t]he exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.”(para 25) The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... Feist Publications, Inc. ...

Most importantly, the work must have “originate from an author and is not copied from another work”. (para. 25)

The second issue asks whether, by providing library patrons with access to photocopiers, the library was authorizing copyright infringement. McLachlin dismissed this argument by stating that providing access did not suggest sufficient “authorization” to violate copyright. It is presumed that a patron with access to the machine would use them lawfully.

The third issue deals with the scope of “fair dealing” and more specifically what constitutes “research”.

When claiming “fair dealing” the claimant must show that 1) the dealing was for the purpose of either research or private study and that 2) it was fair.

In interpreting “research” the Court states that it “must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained.” (para. 51) Consequently, it is not limited to private and non-commercial contexts. Therefore, the library made the copies for research purposes.

McLachlin then examined the meaning of “fair” in the contexts of “dealings”.

She cites Lord Denning in Hubbard v. Vosper when he describes fair dealing as being a “question of degree” that cannot be defined concretely. She follows this by adopting the reasoning of Linden JA in defining six factors to determine fairness. Alfred Thompson Denning, Baron Denning (23 January 1899–6 March 1999) was a British barrister from Hampshire who became Master of the Rolls (the senior civil judge in the Court of Appeal of England and Wales) and was generally well liked, both within the legal profession and outside it. ...

1. the purpose of the dealing
2. the character of the dealing
3. the amount of the dealing
4. alternatives to the dealing
5. the nature of the work
6. the effect of the dealing on the work.

In application of these factors to the facts McLachlin found that, given the restrictions put in place by the Law Society for copying the materials, library was acting fairly.

McLachlin decided not to answer the fourth issue.

In concluding, she noted that headnotes, summaries and topical indices are “original” works. Thus, in copying the material the publishers could only enforce infringements against copying of that type of “original” work and not the actual judicial decisions or other such materials.