Supreme Court finds Law Society’s fax service not in breach of copyright laws

Activists for users’ rights are cheering a March 4 Supreme Court of Canada decision in favour of the Law Society of Upper Canada, but copyright reform experts caution the ruling is just one piece of a broader digital puzzle. The court ruled in the case that the Law Society, which runs a fax service and provides photocopy machines in its legal library to aid researchers, didn’t violate copyright laws when it sent excerpts from legal texts published by CCH Canadian Ltd. to student and legal researchers. The publisher had argued that the excerpts from legal rulings, which included summary information added by its own editors, didn’t fall under Canada’s fair dealing exceptions, which protect users who make use of material for private study or research. The court disagreed, and in the process clarified the fair dealing rules with an emphasis on the balance between users and copyright owners. Fair dealing will be a crucial element of Canada’s eventual reform of the Copyright Act. Opposition to implementing the World Intellectual Propery Organization (WIPO) Internet treaties stems in part from the requirement to provide legal protection to technological protection measures (TPMs) that prevent unauthorized use of copyrighted works. It has been argued that reverse engineering of TPMs is a valid academic exercise, and libraries and others fear works that have been digitally "locked up" won’t be available for legitimate, free uses. Legal experts have been watching for a ruling from the highest court on the subject of fair dealing, and have been watching the CCH case carefully. McGill University professor and noted copyright lawyer Sunny Handa says the CCH ruling helps clarify fair dealing issues. "(The decision) talks about research, and with research it makes a very important point. It says, listen, this is not an exception that’s used by a lonely academic that’s making no money, working in his or her basement. Research means it can be for a for-profit entity. It can be something, probably, akin to a drug company, for example, that’s actually researching stuff. And, it doesn’t say that the research has to be purely for a not-for-profit motive. It says research must be treated expansively, as I read. That’s important because here we’re talking about lawyers researching cases and lawyers aren’t free… So, the court doesn’t actually get hung up on any of the commercial aspects here. It doesn’t mean that you can necessarily go and start using this exception with wild abandon. It just sort of gives us some hooks to hang on our future reasoning, so that’s important." With regard to implementation of Canada’s copyright treaty obligations, though, Handa strikes a cautionary note. "I don’t think the link is obvious or clear. In terms of ratifying and implementing the WIPO treaties, I think…it will serve as an indicator to policy analysts that, you know what? Users still exist. Copyright was always about creators and it’s always been about users. In this case, the court has shown that for many, the pendulum seems to be swinging way too far in one direction… "Will it affect the way a court might deal with it in future if, for example, you have very harsh technological protection measures protection? Possibly, meaning the courts won’t be scared to use fair dealing - I’m hoping - following this decision… But, there’s no obvious and direct link there." Jay Kerr-Wilson, VP legal affairs for the Canadian Cable Television Association (CCTA), who’s responsible for following copyright issues, agrees: "This decision…says fair dealing provisions of the Act are users’ rights, and users’ rights also ought to have broad and purposive interpretations…This is sort of new language from the court saying the Act ought not to narrowly restrict those rights. Moving into an age where we’re seeing increasing conflicts between users’ rights and creators’ rights I think that’s a very instructive statement - for legislators as well as for courts. I think going into a copyright reform process, the departments can now take a look at that kind of language, as we’re legislating, we’ve now got a judicial interpretation of how the Act is supposed to be structured and what the balance is." So far as practical considerations go, though, Kerr-Wilson agrees with Handa that the link between the CCH decision and WIPO implementation is weak. "I think this decision can be read entirely consistently with WIPO principles. Our fair dealing is far more restrictive than the United States’ concept of fair use, which actually goes beyond the research, personal study, news reporting and criticism categories that we have. No one’s ever suggested that the American concept of fair use was contrary to Berne principles or to the two new Internet treaties. I don’t think there’s any cause for concern that somehow the court has interpreted our Act in a way that makes it less amenable to international treaty standards." At a more practical level, the decision will likely have a more immediate impact, says Roger Hughes, the lawyer who represented the publishers. He tells Canadian NEW MEDIA that the court’s ruling will likely result in further litigation to clarify what is, and isn’t, fair dealing. "One always hopes for hard-line black letter law, where you can simply apply a law easily and literally. But, they’ve come out with the two worst words a lawyer ever likes to read in a decision: ‘it depends.’…There’ll be endless litigation with people testing the limits, the circumstances under which this does or doesn’t apply." Hughes says publishers and their copyright collectives such as Access Copyright will have to re-evaluate plans for programs such as blanket licensing for use of their material. "It’s not just lawyers. Think about doctors, architects, engineers, students, individuals - all people who, for their personal benefit or for their livelihood do research. We can keep on going. Who would (now) do a mathematical text or an encyclopedia or something like that without thinking, my goodness, who’s going to be handing out copies of this and why and under what circumstances?" With the court’s ruling on fair dealing now out of the way, and following last summer’s Théberge decision, copyright experts are now watching for the court’s ruling on Tariff 22. In ruling against CCH in this case, the Supreme Court decided that even though photocopiers could be used to infringe copyright, simply providing them for others to use isn’t an infringing activity. ISPs have an appeal before the Supreme Court to reverse a decision that the caches they use to provide service trigger liability for the music files stored on them. The CCTA’s Kerr-Wilson says the court’s ruling in CCH is encouraging.

Supreme Court finds Law Society’s fax service not in breach of copyright laws

Broadcast | March 17, 2004

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