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.