In an unanimous decision, written by Chief Justice McLachlin, the Supreme Court of Canada held that the Law Society of Upper Canada (LSUC) did not infringe copyright by providing single copies of the respondent publisher's works to its members through the its photocopy service. While the Supreme Court held that the works published in the various reports and statutory publications constitute original work, it found the LSUC is permitted to provide copies to its members pursuant to section 29 (fair dealing) of the Copyright Act.
In its decision, the Court underwent a detailed examination of the definition of "original" in the Copyright Act. The Court held that what is required to attract copyright protection is an exercise of skill and judgment. In particular, McLachin C.J. stated "[by] skill, I mean the use of one's knowledge, developed aptitude or practiced ability in producing the work. By judgment, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work." However, the Court also noted that the skill and judgment that is required, in order to consider a work original, must not be so trivial that it could be produced through a purely mechanical exercise.
In analyzing the work performed by the publishers, the Court held that the headnotes, case summary, topical index and reported judicial decisions would all constitute original work covered by copyright protection. However, the Court also made it clear that the publishers could not claim copyright protection of the actual judicial decisions themselves, without the headnotes.
The Court turned to an analysis of the photocopy service provided by the LSUC to determine whether the process was covered by the fair dealing section of the Copyright Act. The Court noted that the purpose of the exception is to balance the interests of owners and users. To avail itself of the provision, a defendant must establish: (1) that the dealing was for the purpose of either research or private study, and (2) that it was fair.
On how to determine whether something is "fair" the Court set out six factors that should be considered: (1) the purpose of the fair dealing, (2) the character of the dealing, (3) the amount of the dealing, (4) the alternatives to the dealing, (5) the nature of the work, and (6) the effect of the dealing on the work.
Interestingly, prior to going into an analysis of the six factors, the Court noted that the photocopying service is an integral part of the research process. It is therefore permitted under the integral part of the legal research process provided for under section 29 of the Copyright Act. In reaching this conclusion, the Court ruled that the term "research" must be given a large and liberal interpretation to ensure that the rights of users are not infringed.
Nonetheless, the Court turned to an analysis of whether the dealings of the LSUC, in their photocopy service, were fair, according to the six factors that were established. The Court held that on all six factors the Law Society's policies were consistent with the fair dealings section of the Copyright Act.
The Court also reviewed the Law Society's self-copying process and concluded that it did not breach copyright law in allowing library patrons to photocopy materials because the Law Society does not have sufficient control over patrons of the library.
For a copy of the decision, visit:
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html
Heydary, Javad
(416) 972-9001 Ext. 201
clientservices@heydary.com
