CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13

In what has become a landmark case defining the “fair dealing” exemption from Canadian copyright law, the Law Society of Upper Canada defended a copyright infringement claim by various publishers, which challenged its practice of photocopying legal materials for the use of lawyers and legal researchers.

The Federal Court trial division and Federal Court of Appeal had allowed the publishers’ claim in part, but the Supreme Court of Canada reversed this decision. The Court acknowledged that the works in question were “original” within the meaning of the Copyright Act and therefore subject to copyright, but found that the photocopying of legal materials for research purposes qualifies for protection under the concept of “fair dealing”:

“Under s. 29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright. “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained, and is not limited to non-commercial or private contexts. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29. The following factors help determine whether a dealing is fair: the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing, and the effect of the dealing on the work. Here, the Law Society’s dealings with the publishers’ works through its custom photocopy service were research-based and fair. The access policy places appropriate limits on the type of copying that the Law Society will do. If a request does not appear to be for the purpose of research, criticism, review or private study, the copy will not be made. If a question arises as to whether the stated purpose is legitimate, the reference librarian will review the matter. The access policy limits the amount of work that will be copied, and the reference librarian reviews requests that exceed what might typically be considered reasonable and has the right to refuse to fulfill a request.”

The Supreme Court of Canada further found that the placement of self-serve photocopiers in the Law Society’s library did not constitute an authorization to violate copyright, and that the transmission of legal materials to a single recipient who requested them did not constitute a “communication to the public” within the meaning of copyright law. Finally, the Court ruled that the Law Society qualified for a library exemption.

This decision goes a long way towards strengthening and clarifying the fair dealing exemption, making it clear that the mere transmission of a publicly-available document for research purposes to a single recipient who has requested it does not constitute copyright infringement.

Decided by the Supreme Court of Canada on March 4, 2004.
Click here for the full text of the decision.

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