Supreme Court rules in favour of users in CCH decision

The Supreme Court of Canada has again made it clear that it will protect users’ rights in copyright as it ruled on the case of CCH v. Law Society of Upper Canada today. The decision, written by Chief Justice Beverly McLachlin, says it wasn’t copyright infringement for the Law Society’s Toronto legal library to photocopy and fax legal decisions contained in books published by CCH Canadian Ltd. to lawyers conducting research – an activity the Law Society argued was fair use.The ruling, which leans heavily on the same court’s decision in the Théberge case (CNM, May 1/02), will likely have a dramatic effect on most of the discussions now ongoing surrounding digital copyright reform, and may be a preview of the Tariff 22 decision expected this summer (CNM, Dec. 4/03).While the court found that the works in question were original – a fundamental requirement for copyright protection – Canada’s fair use laws protect the library’s activities. In a lengthy and thorough explanation of the court’s decision, McLachlin writes:“Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and user’s interests, it must not be interpreted restrictively.”The decision is replete with similar arguments regarding users’ rights. In finding the work to be original, for example, the chief justice writes that “ courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation.”Internet service providers (ISPs) will likely cheer the court’s finding that the provision of photocopiers is not a copyright offence. “ person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright,” the Supreme Court ruled. The decision might be a peek into the court’s upcoming ruling on Tariff 22 in which the Society of Composers, Authors and Music Publishers of Canada (SOCAN) is seeking a blanket tariff paid by ISPs to cover copyrighted music that subscribers download over their connections.The decision may also have application in the current process to ratify Canada’s commitments under the WIPO Internet treaties. The use of digital rights management and technological protection measures – key elements of the treaties – have been opposed on fair use grounds by users’ rights groups.Canadian NEW MEDIA will have further details in an upcoming issue of the newsletter.

Supreme Court rules in favour of users in CCH decision

Broadcast | March 4, 2004

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