[WikiEN-l] Supreme Court of Canada on copyright

[Ray Saintonge]

The following case summary may be of interest to some since it concerns 
"fair dealing.".  It was released to-day.  For the full text see 
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html


         The appellant Law Society maintains and operates the Great
    Library at Osgoode Hall in Toronto, a reference and research library
    with one of the largest collections of legal materials in Canada.
    The Great Library provides a request-based photocopy service for Law
    Society members, the judiciary and other authorized researchers.
    Under this "custom photocopy service", legal materials are
    reproduced by Great Library staff and delivered in person, by mail
    or by facsimile transmission to requesters. The Law Society also
    maintains self-service photocopiers in the Great Library for use by
    its patrons. In 1993, the respondent publishers commenced copyright
    infringement actions against the Law Society, seeking a declaration
    of subsistence and ownership of copyright in specific works and a
    declaration that the Law Society had infringed copyright when the
    Great Library reproduced a copy of each of the works. The publishers
    also sought a permanent injunction prohibiting the Law Society from
    reproducing these works as well as any other works that they
    published. The Law Society denied liability and counterclaimed for a
    declaration that copyright is not infringed when a single copy of a
    reported decision, case summary, statute, regulation or a limited
    selection of text from a treatise is made by the Great Library
    staff, or one of its patrons on a self-service copier, for the
    purpose of research. The Federal Court, Trial Division allowed the
    publishers' action in part, finding that the Law Society had
    infringed copyright in certain works; it dismissed the Law Society's
    counterclaim. The Federal Court of Appeal allowed the publishers'
    appeal in part, holding that all of the works were original and
    therefore covered by copyright. It dismissed the Law Society's
    cross-appeal.

         Held: The appeal should be allowed and the cross-appeal
    dismissed. The Law Society does not infringe copyright when a single
    copy of a reported decision, case summary, statute, regulation or
    limited selection of text from a treatise is made by the Great
    Library in accordance with its access policy. Moreover, the Law
    Society does not authorize copyright infringement by maintaining a
    photocopier in the Great Library and posting a notice warning that
    it will not be responsible for any copies made in infringement of
    copyright.

         The headnotes, case summary, topical index and compilation of
    reported judicial decisions are all original works in which
    copyright subsists. An "original" work under the Copyright Act is
    one that originates from an author and is not copied from another
    work. In addition, an original work must be the product of an
    author's exercise of skill and judgment. The 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. While
    creative works will by definition be "original" and covered by
    copyright, creativity is not required to make a work "original".
    This conclusion is supported by the plain meaning of "original", the
    history of copyright law, recent jurisprudence, the purpose of the
    Copyright Act and the fact that this constitutes a workable yet fair
    standard. While the reported judicial decisions, when properly
    understood as a compilation of the headnote and the accompanying
    edited judicial reasons, are "original" works covered by copyright,
    the judicial reasons in and of themselves, without the headnotes,
    are not original works in which the publishers could claim copyright.

         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 Law Society did not authorize copyright infringement by
    providing self-service photocopiers for use by its patrons in the
    Great Library. While authorization can be inferred from acts that
    are less than direct and positive, 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. This presumption may be rebutted if it is shown that a
    certain relationship or degree of control existed between the
    alleged authorizer and the persons who committed the copyright
    infringement. Here, there was no evidence that the copiers had been
    used in a manner that was not consistent with copyright law.
    Moreover, the Law Society's posting of a notice warning that it will
    not be responsible for any copies made in infringement of copyright
    does not constitute an express acknowledgement that the copiers will
    be used in an illegal manner. Finally, even if there were evidence
    of the copiers having been used to infringe copyright, the Law
    Society lacks sufficient control over the Great Library's patrons to
    permit the conclusion that it sanctioned, approved or countenanced
    the infringement.

         There was no secondary infringement by the Law Society. The Law
    Society's fax transmissions of copies of the respondent publishers'
    works to lawyers in Ontario were not communications to the public.
    While a series of repeated fax transmissions of the same work to
    numerous different recipients might constitute communication to the
    public in infringement of copyright, there was no evidence of this
    type of transmission having occurred in this case. Nor did the Law
    Society infringe copyright by selling copies of the publishers'
    works. Absent primary infringement, there can be no secondary
    infringement. Finally, while it is not necessary to decide the
    point, the Great Library qualifies for the library exemption.