Court Finds Law Society of Upper Canada Infringed Copyright

TORONTO (CANCOPY): Mr. Justice Gibson of the Federal Court of Canada rendered a decision today in the case involving the Law Society of Upper Canada's document delivery service and three of Canada's major legal publishers (Carswell Thomson Professional Publishing, Canada Law Book Inc. and CCH Canadian Limited). The judgment confirms that the Law Society infringed the copyright of the publishers and rejects the Law Society's claim of fair dealing.

The case began in 1993 when CCH, Carswell, and Canada Law Book brought a claim against the Law Society because of the operation of its document delivery service. Through the service, the Law Society made copies of the publishers' works, charging customers a fee for the copies and sending them out by fax or mail. The Law Society did not get permission from the publishers for the activity, nor did it pay a fee to the publishers, even though it was charging fees to customers. The Law Society also refused a licence from CANCOPY, the Canadian Copyright Licensing Agency, the organization representing the publishers' reproduction (i.e. photocopying) rights.

The Law Society claimed that it was not infringing copyright because of the availability of the defence of "fair dealing for the purposes of research, private study, criticism, or review" in the Copyright Act. It further claimed that it was permitted to make copies because to pay licence fees would impinge on the public interest or be contrary to public policy. The court rejected all of the Law Society's claims, calling it "a paradigm of overreaching", and confirmed that under Canadian copyright law the defence of "fair dealing" must be narrowly construed. The judge specifically noted the availability of CANCOPY licences and the fact that there is appropriate legal means to ensure CANCOPY's licence fees are just and reasonable as a reason to reject the Law Society's claims.

"We are very pleased that the Court has dismissed the Law Society's fair dealing defence," said Fred Wardle, CANCOPY's Executive Director. "CANCOPY worked closely with the publishers in the conduct of this action, as part of its mandate to protect and promote the rights of copyright owners in published works."

While the publishers were successful in defending their copyright interests in certain textbooks and an annotated statute, the Judge did decline to find that the publishers' owned copyright in three specific reported judicial decisions on the basis of a lack of sufficient originality in those works. The three publishers are considering their options to appeal this part of the judgment.

CANCOPY is a non-profit organization that represents the rights of creators and publishers, both Canadian and foreign, for copying of their work. CANCOPY

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