Law Society’s Supreme Court bid welcomed as important review of users’ rights

Copyright experts have welcomed news that the Supreme Court of Canada has agreed to hear an appeal in the case of CCH Canadian Ltd. et. al. vs. the Law Society of Upper Canada, saying the outcome will help clarify the crucial issue of fair use of copyrighted works. This month the highest court agreed to hear the appeal launched by the Law Society after the Federal Court of Appeal ruled last May the group was in violation of copyright laws for its legal decision fax service (CNM, May 31/02). The Supreme Court case will mark the first time the body will consider fair use issues, bound to be an important element of future digital copyright cases. The court has also agreed to hear the cross-appeal launched by the publishers including CCH. The Law Society was originally brought to court for its fax service. Working through the University of Toronto’s law library, the society offered a service to fax legal decisions to lawyers. Those faxes included explanatory notes appended by the publishers, CCH. The Federal Court of Appeal ruled that including those notes left the Law Society in an infringing position. As part of its earlier defence, the Law Society had argued that its activities were protected by fair dealing provisions in the Copyright Act. Justice Allen M. Linden, who wrote the May 2002 Federal Court of Appeal decision, disagreed. In its leave to appeal, the society has asked the court to re-open the issue. It writes: "Through uncertainty as to the scope of users’ rights, and the creation of an exceptionally low standard on the requirement of originality and substantial taking, the pendulum between the scope of copyright monopoly and users’ rights has swung dramatically in favour of the monopoly." The Federal Court of Appeal decision also found that the texts being faxed were original works – a prerequisite of copyright protection. The Law Society has asked the Supreme Court to make a further ruling. The society writes: "Access and availability to the law becomes the issue when the test for ‘originality’ results in publishers effectively removing from the public domain the judge-made law in Canada by merely publishing a copy of it. Such an interpretation of originality fundamentally alters the balance between corporate monopolies and users’ rights by allowing published copies to garner copyright protection to the detriment of those entitled to the underlying work, in this case the public." The publishers disagree. In their reply to the society’s application, and their own application for leave to cross-appeal, the publishers point to the Federal Court of Appeal’s ruling on fair dealing – in this case that the court could not consider a specific example – as satisfactory. But, said the Law Society in its October 21 response, "With respect to the second ground for which leave is sought, namely ‘fair dealing’, the previous two levels of court arrived at different conclusions as a matter of law as to the applicability of the fair dealing provisions to the activities of the Law Society. The fair dealing provisions of the Copyright Act are the most significant user rights in the legislation and yet have never been considered by the Supreme Court. "The Court of Appeal’s analysis of fair dealing makes it virtually impossible for users to determine in advance whether copying would constitute fair dealing or be considered an infringement. Such a nebulous standard for fair dealing favours the copyright holder by creating uncertainty as to whether a copying activity is permissible." Copyright experts are pleased that the Supreme Court has opted to take on the case, particularly as it has not yet examined the crucial element of fair dealing. Blake, Cassels & Graydon LLP lawyer Sunny Handa says a review is due. "Part of the problem is that (the Copyright Act is) becoming a catch-all for all sorts of new technologies, informational protection," he tells Canadian NEW MEDIA. "In that case, you need something like fair dealing to allow the Act to deal quickly to new technologies, and that’s really why fair dealing needs to be expanded. Right now, there are all sorts of uses that don’t fit squarely into the Act, and generally speaking even if you have a good sense that ‘hey, this looks kind of fair. It looks like something that should be considered fair dealing,’ in Canada, you don’t really want to bet on that being the case, because you’ll probably lose... "I think what people are really looking for, including myself, is really a thoughtful decision in the area of fair dealing, and copyright in general." Handa notes that the CCH case will fit into a new continuum of cases before Canada’s highest courts taking a close look at the country’s copyright laws. The Théberge case, for example, has laid new groundwork as to the purpose of copyright law, setting out a strong argument in favour of users’ rights (CNM, May 1/02). It’s an important discussion to have, Handa says, as digital copyright cases begin to come to the fore. "We’re starting to see very advanced and sophisticated decisions in the copyright area from some rather high courts. There are a number of court of appeal decisions. There’s the Théberge Supreme Court decision, which spoke about the policy, the theory behind copyright – why we have copyright. That is a crucial first step…Now, the other decisions can flow, perhaps a little more easily… "What we’re seeing is a very high-level, 35,000-feet evolution of copyright. A coming of age, in a way, but the courts are now addressing it and they’re addressing the fundamentals. Basically, copyright was so ignored and has become so important that it’s nice to see that the courts are now not applying just patchwork solutions, they’re actually looking at some of the fundamentals of copyright. What’s the purpose of it? Once you know the purpose, it allows you to interpret a number of sections in a much easier or a more sensible way."

Law Society’s Supreme Court bid welcomed as important review of users’ rights

News | 12/20/2002 5:00 am EST

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