Law Society library ruling offers clarification on communication right

A May 14 ruling by the Federal Court of Appeal clarifies the right to communicate to the public by telecommunications by adding a new element of control until now missing from the jurisprudence. As part of its finding for legal text publishers CCH Canadian Ltd. (Carswell Thomson Professional Publishing) against the Law Society of Upper Canada, the appeal court found that if a party takes steps to facilitate communication, with the practical ability to control who gets what, no communication takes place. The long-term impact of the ruling, which pushes both parties to the negotiating table in their fight over a legal text copying service offered by the University of Toronto’s Great Library, won’t be known for several years. But, say parties to the case and observers, its findings on liability in cases of electronic sharing will likely be brought up in future digital copyright cases. Partly at issue in the case was whether the law library at Osgoode Hall infringed on the copyrights owned by CCH Canadian, which publishes legal judgements with accompanying notes in collections. The library offers a service to photocopy and fax portions of those texts to law students, academics and other researchers. In the case, the publishers asserted that the library was infringing its right to communicate its works to the public by accepting requests for photocopies. In his finding that such was not the case, Justice Allen Linden wrote: "There is no merit in this submission. Merely evincing a willingness to accept requests by patrons of the Great Library for copies of the Publishers’ works is not an infringement of the Publishers’ right to communicate their works to the public. Leaving aside the question of whether patrons of the Great Library are ‘part of the public’, the Publishers’ works are not communicated by the Law Society if it must take steps to facilitate the communication before anyone can receive those works and it retains the practical ability to consider each request individually and either accept or decline it." The court also made several findings on the library’s defence of fair dealing, claiming that its service was protected by exceptions built into copyright law to permit such uses as academic study. While the court found that the library could claim a "vicarious" exception because in making the copies it shared the same purpose as those requesting them, it could not say that all instances of copying were allowable among the many requests. Though the library posts a copyright warning above photocopiers, it cannot guarantee that all instances of copying are exempt. In a ruling that advocates of strong copyright protection for works will likely cheer, Linden disagrees with an earlier trial judge’s assertion that enforcing copyright would significantly impair the public interest. "…Broadly speaking, I have implicitly considered the values advocated by the Law Society in balancing of the Publishers’ rights with the public interest. To me, the Publishers’ rights must also be fairly recognized in order to guarantee incentives to continue to provide original legal publication, in furtherance of the values the Law Society describes," he wrote. If the library wishes to avoid infringement, he added, it might reproduce only the reasons for judgement as written by the court, without the notes added by CCH Canadian’s editors. Finally, some observers have also noted the clarification made by the court on the topic of originality. To be protected by copyright law, Linden noted, the work must be original. Because the works in question were annotated texts of judgements produced by the courts, the Law Society had argued that copyright didn’t apply. In the ruling under appeal, the earlier trial judge had found that "imagination or creative spark" was a necessary component to originality. Linden rejected the argument, stating plainly that "the crucial requirement for a finding of originality is that the work be more than a mere copy."

Law Society library ruling offers clarification on communication right

News | 05/31/2002 4:00 am EDT

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