CCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. 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.

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"http://library.lsuc.on.ca/GL/home.htm in Osgoode Hall. The Law Society provided single copies of legal articles, statutes, and decisions to those who requested.

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 court was asked 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)

Subsistence of 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 of 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)

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

In concluding, she noted that headnotes, summaries, and topical indices are sufficient exercises of skill and judgement that they are ?original? works. Thus, in copying the material the publishers could only enforce infringements against copying. However, she also notes that the judgements themselves are not copyrightable, nor are the typographical corrections done by the editors sufficient to attract copyright protection.

Authorization

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 machines would use them lawfully.

Fair dealing

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 cited 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, which incorporated English and US views, in defining six factors to determine fairness.

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, the library was acting fairly.

McLachlin decided not to answer the fourth issue.

See also

• List of Supreme Court of Canada cases (McLachlin Court)
• Williams & Wilkins Co. v. United States (1973): a similar US case

External links