Editorial re SCC copyright decision implications

[Kim Nayyer <kim_mlis@yahoo.ca>]

Hello subscribers,
(cross-posted; please excuse duplications)

Those interested in implications of the recent Supreme Court of Canada
decision on use of copyright-protected materials (in CCH Canadian v. Law
Society of Upper Canada) may wish to read the following editorial,
reproduced from The Copyright & New Media Law Newsletter, Volume 2004,
Issue 1.

More information about the Newsletter is available from
libraries@copyrightlaws.com or at http://copyrightlaws.com.

Regards,
Kim

kim@copyrightlaws.com
--------------------------------
Editorial 

Copyright laws all over the world attempt to balance the interests of
authors and owners of copyright protected works with those of "users" of
copyright protected works, such as librarians, educators and researchers.  
There are, however, significant differences among Western countries in how
they strike the balance.  France, for example, provides strong economic
and moral rights protection to its creators, whereas the United States
permits broad free uses of copyright protected materials under the
doctrine of fair use.  Some countries like the United Kingdom and Canada,
have copyright laws that take the "middle ground" between European and
United States laws, providing authors with reasonable protection in their
creations, while at the same time granting users some free limited uses of
copyright protected materials.

In general, countries remain loyal to their copyright philosophies in
amending copyright laws and in judicial interpretation of those laws.  In
the United States, however, since the introduction of the bill leading to
the Digital Millennium Copyright Act ("DMCA"), which was passed into law
in 1998, users of copyright protected materials have been consistent in
their criticism of the law asserting that it goes against the philosophy
of U.S. copyright law and grossly tips the balance in the U.S. copyright
law towards the creator/owner side.  Recently, a Supreme Court of Canada
decision manifests a shift in the balance of Canadian copyright law
towards users of copyright protected materials.

On March 4, 2004, the Supreme Court of Canada handed down its decision in
CCH Canadian Ltd. v. Law Society of Upper Canada (see:  
http://www.canlii.org/ca/cas/scc/2004/2004scc13.html.)

The decision ruled on a number of important issues.  This editorial
focuses on the part of the decision dealing with fair dealing.  The
defendant, the Law Society of Upper Canada, maintains one of the largest
collections of legal materials in Canada.  It is open to lawyers, the
judiciary, law students and other authorized researchers.  The library has
a "custom photocopy service" in which legal materials are reproduced by
the library staff and delivered in person, by mail or by fax to
requesters.  In 1993, CCH and other publishers ("the respondents") sought
a declaration that the Law Society had infringed copyright when the law
library reproduced a legal case or article.  The Supreme Court has now
held that 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 library in accordance
with its access policy.

Section 29 of the Canadian Copyright Act states:  "Fair dealing for the
purpose of research or private study does not infringe copyright."  This
defense has always been interpreted narrowly and generally does not apply
to entire works like a periodical article.  In addition to fair dealing,
there are specific exceptions for libraries, archives, museums and
educational institutions.  In its March decision, the Supreme Court has
greatly broadened the scope of fair dealing.  The Court used such
expressions as "users' rights", a concept that has never been part of
Canadian copyright law.  The Court stated, "'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."  In addition, the Court stated, "This case requires this Court
to interpret the scope of both owners' and users' rights."  The Court
weighed the various common law factors which must be examined when
analyzing fair dealing, examining the purpose of the dealing, the
character of the dealing, the amount of the dealing, alternatives to the
dealing, the nature of the work, and the effect of the dealing on the
work.

It should be noted that the library in question has an Access Policy which
the Supreme Court took into account in interpreting fair dealing.  The
Court held that this Policy "places appropriate limits on the type of
copying that the Law Society will do.  It states that not all requests
will be honoured.  If a request does not appear to be for the purpose of
research, criticism, review or private study, the copy will not be made."

This liberal interpretation of fair dealing will certainly have an effect
on the notion of "users' rights", and perhaps future amendments (currently
underway) to the Canadian copyright law.  The question remains whether
this change in the balance of Canadian copyright is permanent or whether
the copyright pendulum will again swing back toward protecting the
interests of creators.

____