The Law Society of Upper Canada is making a last appeal to define its court decision fax service as an application of fair dealing under the Copyright Act. On May 3, the society filed its arguments in the case of CCH Canadian Ltd. et. al. vs. the Law Society of Upper Canada with the Supreme Court of Canada in preparation for an eventual hearing of the case (CNM, Dec. 20/02, May 31/02). In its appeal, the Law Society requests an order to set aside the Federal Court of Appeal's judgement, to dismiss publisher CCH Canadian Ltd.'s copyright actions against it, and to declare that making single copies or copying limited amounts of text from legal material published by CCH for the purpose of research or to be used in a court case doesn't constitute an infringement of the publisher's rights. The case is a follow-up to last May's lower court ruling that the Law Society, which makes copies of legal judgements from compilation works published by CCH then faxes those to lawyers who have requested them, constitutes a copyright infringement unprotected by fair dealing provisions. Digital copyright lawyers have been closely following the case as Canada's highest court has done little copyright work in recent decades. Experts expect a rush of copyright cases in the near future, however, as new digital distribution models and public interest discussions about fair use and digital rights management systems come to the fore. The Law Society's case rests on two main points - the standard of originality that must be met before a work can be protected by copyright provisions, and the interpretation of fair dealing provisions as they relate to this case. The Law Society writes at length in its May 3 brief on the subject of originality and whether the compilations of legal decisions from which they photocopy can be considered "legal works" for the purpose of a copyright infringement case. In its brief, it argues for an approach to originality that includes creativity - something missing from compilations. "The creativity test reflects a balanced approach to copyright protection that is in harmony with the dual policy goals of the Act, by 'assign authors the right to their original expression, but encouraging others to build freely upon the ideas and information conveyed by a work': Feist, pp. 349 to 350. An industrious collection standard of originality rewards labour to the detriment of the public interest in the encouragement and dissemination of works of the arts and intellect. It creates practical obstacles to the proper utilization of facts and public domain material. While the creativity test is more restrictive than the industrious collection test regarding the availability of copyright protection for works of fact and those that incorporate public domain material, that is because it is precisely those types of works which are, from a public policy perspective, the most in need of being widely communicated and used by society and which are the least reflective of any personal imprint by an author." The brief goes on to argue that just adding a foreword or précis to public domain material can't be considered original under a creativity test. "Any test for originality that creates such a result undermines the very purpose and rationale for the Act. It rewards copying; over-compensates the publisher; restricts the public's ability to access copy and use reasons for judgement by requiring that copies be obtained from the original court source to avoid any allegation of infringement; and, in doing so, frustrates the policy objective of the legislation to encourage learning. " The Law Society is also trying to resurrect a debate on fair dealing cut off by the Federal Court of Appeal. In the lower court, it was determined that the copies requested undercover by the publishers were being collected for evidence and that the court would be unable to apply fair dealing provisions to them. But, says the Law Society in its appeal, several of the requests were for the purpose of legitimate research and the court should consider the fair dealing aspects of the case.