Intellectual Property Rights

CCH Canadian Ltd. v. Law Society of Upper Canada

2004 SCC 13; [2004] 1 SCR 339

Facts

CCH Canadian and other legal publishers produced reported judgments, headnotes, summaries and legal materials.
The Law Society of Upper Canada operated the Great Library at Osgoode Hall.
The Library provided a custom photocopy service for lawyers and researchers.
Upon request, staff sent single copies of legal materials for research purposes.
The Library also maintained self-service photocopiers.
The publishers alleged that the Law Society infringed copyright and authorised infringement.
The Law Society relied upon fair dealing for research and argued that some claimed works lacked originality.
The dispute reached the Supreme Court of Canada.

What originality standard applies to legal publications.
Whether photocopying for lawyers’ research constitutes fair dealing.
Whether the Library authorised infringement by providing self-service photocopiers.
Whether commercial or professional research can qualify.

An original work must result from an exercise of skill and judgment that is:
not purely mechanical;
not so trivial that it is insignificant.
Originality does not require creativity in the sense of novelty.
It also requires more than mere labour.
Fair dealing is a user’s right and must not be interpreted restrictively.
“Research” includes professional and commercial research.
Fairness is assessed through factors including:
purpose;
character;
amount;
alternatives;
nature of the work;
effect upon the market.
Authorisation requires sanctioning, approving or countenancing infringement; merely supplying equipment is insufficient without further evidence.

Judicial decisions themselves were public legal materials.
Original headnotes and summaries prepared by publishers could satisfy the skill-and-judgment standard.
Routine features lacking meaningful judgment would not automatically qualify.
The Library’s custom service generally supplied one copy of a requested case or limited extract.
Its access policy restricted the service to research, review, private study or similar purposes.
The fact that lawyers used copies in professional work did not remove the activity from “research.”
Research is not limited to private, non-commercial curiosity.
The amount copied was assessed according to each request.
A complete judgment could reasonably be required because legal research often depends on the full reasoning.
There was no evidence that the Library systematically distributed multiple copies as substitutes for subscriptions or textbooks.
The service facilitated access to law rather than replacing the publishers’ entire market.
The availability of licences did not automatically make unlicensed research copying unfair.
Regarding self-service machines, the Law Society posted notices and did not encourage unlawful copying.
A person who supplies equipment capable of both lawful and unlawful uses does not necessarily authorise every misuse.
The publishers failed to prove that the Law Society sanctioned infringement.

The Supreme Court of Canada held that the custom photocopy service constituted fair dealing for research.
Professional and commercial legal research fell within the protected purpose.
The Law Society did not authorise infringement merely by providing self-service photocopiers.
The Court adopted the skill-and-judgment originality test.
Use this case for: fair dealing is a user’s right, and professional research copying may be fair when its purpose, amount and market effect are reasonable.