Editorial re SCC copyright decision implications

[Kim Nayyer <kim_mlis@xxxxxxxx>]

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@xxxxxxxxxxxxxxxxx or at
http://copyrightlaws.com.

Regards,
Kim

kim@xxxxxxxxxxxxxxxxx
--------------------------------
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.

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