The Supreme Court of Canada today released a significant decision that is being widely commented on south of the border. In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Court had to deal with the issue of the Law Society of Upper Canada offering a custom photocopy service for lawyers. Legal publishers argued that this violated their copyright.
The Court, in a unanimous decision, held that the copyright holders interests must be balanced with the the users rights. The case reports were considered original works because they included such things as headnotes, case summary, topical index and compilation. As such, they were protected by copyright.
The Federal Court of Appeal had concluded that the Law Society, by providing a photocopier in the library, implicitly sanctioned, approved or countenanced infringement of the works. The Supreme Court overturned this decision stating:
First, there was no evidence that the photocopiers had been used in a manner that was not consistent with copyright law. As noted, a person does not authorize copyright infringement by authorizing the mere use of equipment (such as photocopiers) that could be used to infringe copyright. In fact, courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. Although the Court of Appeal assumed that the photocopiers were being used to infringe copyright, I think it is equally plausible that the patrons using the machines were doing so in a lawful manner. (italics added)
In dealing with copying service itself, the Court stated that the act should be a large and liberal interpretation to ensure that users' rights are not unduly constrained:
"Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained. I agree with the Court of Appeal that research is not limited to non-commercial or private contexts. The Court of Appeal correctly noted, at para. 128, that "[r]esearch for the purpose of advising clients, giving opinions, arguing cases, preparing briefs and factums is nonetheless research". Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29 of the Copyright Act.
The Court concluded that the use by the Law Society and the lawyers of the copyrighted material constituted fair use.
This decision could well have wide reaching impact, particularly in upcoming legal battles over digital and online material.
Further comments Michael Geist, Copyfight: The Politics of IP, Open Access News
8:07:58 PM 
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