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FactsEdit

The Law Society of Upper Canada (LSUC) has a reference/research library offering a custom and self serve photocopy service. CCH Canadian (CCH) sues seeking a declaration of subsistence and ownership of copyright in 11 specific works, a declaration that LSUC has infringed on their copyright, and a permanent injunction preventing further copying. LSUC denies the infringement and files a counterclaim for declaration that copyright is not infringed when a single copy of a reported decision, case summary, statute, regulation or a limited selection of text from a treatise is made by the Great Library staff or patron for research purposes.

IssueEdit

  1. Are publishers' materials "original works" protected by copyright?
  2. Did the Library authorize copyright infringement by maintaining self-service photocopiers and copies of the publishers' works for its patrons' use?
  3. Were the law society's dealings with the publishers' works "fair dealings" under s.29 of the Copyright Act?

DecisionEdit

Appeal allowed, Court of Appeal decision overturned.

ReasonsEdit

  1. The publishers’ works are original and protected by copyright act. Applied a test for originality:
    1. The expression of an idea is an exercise of skill and judgment
    2. Must not be so trivial that it could be characterized as a purely mechanical exercise
    3. Creativity is not required for a work to be “original”
  2. No evidence the copiers were used in manner inconsistent with copyright law. The court held that the Court of Appeal erred in finding that LSUC's posting of the notice constitutes an express acknowledgement that copiers will be used in an illegal manner. LSUS lacks sufficient control over the works patron chooses to copy, purposes for copying, or photocopiers themselves. LSUC does not have to go out and prove that people who use copiers or take advantage of the custom photocopy service have done so in accordance with the law; the burden of proof rests on CCH (can rely on the fair dealing exception).
  3. LSUC can rely on it’s general practice under the 1996 "Access to Law Policy" to establish fair dealing. Applied a test for fair dealing:
    1. In order to show that a dealing was fair under s.29 of the Copyright Act the defendant must prove:
      1. that the dealing was for purpose of either research or private study
      2. dealing was fair
    2. Series of factors to consider include:
      1. purpose of dealing (research, private study, criticism, review, news reporting)
      2. characteristics of dealing
      3. amount of dealing
      4. alternatives
      5. nature of the work
      6. effect of dealing on the work on the market of the copyright owner

RatioEdit

The Copyright Act has dual objectives, to balance public interest in the encouragement and dissemination of works and obtaining a just reward for the creator; the balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.

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