Library Services

Photocopies and Copyright in the Library

Recent developments in the law of copyright

The Copyright Act and regulations  were amended in 1997 which included allowances for copying in libraries without violating the author’s rights.  The exceptions to infringement for libraries are complex and contain particular requirements for library record-keeping and procedures.  Impending litigation between the legal publishers and the Law Society of Upper Canada to the Supreme Court of Canada may help to clarify the issue of “fair dealing” (s. 29 of the Act).

The Federal Court of Appeal delivered its decision in the case of three major legal publishers suing the Law Society of Upper Canada for infringement of copyright.  CCH Canadian Ltd. v. Law Society of Upper Canada, 2002 FCA 187, dated May 14, 2002, appealed from the Federal Court Trial division decision, dated November 9, 1999.  Leave to appeal to Supreme Court of Canada granted December 12, 2002 (SCC 29320).

The following are the key conclusions reached by the Federal Court of Appeal (see also summary of decision):

• Copyright was found to subsist in each of the publishers’ works in evidence, including reported judicial decisions and headnotes.
• The Court affirmed that photocopying for the purpose of “research,” undertaken in accordance with the defence of fair dealing, does not infringe copyright in any legal work.
• The Great Library (and therefore Saskatchewan Law Society libraries) can vicariously rely on the defence of fair dealing to photocopy a work on behalf of a member who wishes to use the work to engage in legal research.  We believe that this conclusion would also apply to law libraries operated by members.
• The Court affirmed that “research” can include commercial research carried out for profit by lawyers and law firms, including photocopying for activities such as advising clients, providing opinions and arguing matters in Court.
• However, the determination of whether an act of photocopying is also “fair” in the circumstances, and therefore exempt from infringement as fair dealing, was stated to be extremely complex and fact specific.  Unfortunately, the Court’s statements on the issue of “fairness” make it impracticable for members to discern the scope of permitted conduct in the daily practice of law.
• Finally, the Court stated that copyright in legal material could be infringed by “authorization” in the case of libraries (such as the libraries in Saskatoon and Regina) that provide others with access to stand-alone photocopy machines unless adequate measures are taken to monitor and police the use of such machines to ensure that they are not used by anyone in an infringing manner.  The Court did not specify what measures must be in place for law libraries to avoid such deemed infringement.

The Law Society of Upper Canada provided a summary of the decision which appeared on its website.  We have reproduced the summary here with permission.