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| Mar. 22, 2004. 01:00 AM |  | Low-tech case has high-tech impact
MICHAEL GEIST
LAW BYTES
While the public's attention has been focused this month on the Canadian Recording Industry Association's lawsuit against 29 unnamed file sharers and the related issue of whether Internet service providers should be compelled to disclose the file sharers' identities, Canadian copyright law was hit recently with a decision of far greater import. The Law Society of Upper Canada v. CCH Canadian, a Supreme Court of Canada decision released by a unanimous court several weeks ago, instantly ranks as one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright.The case involved a dispute between the law society the body that governs the legal profession in Ontario and several leading legal publishers. Unlike many high-profile cases that involve the Internet, this case centred on the use of a distinctly old-style copying technology: photocopiers. The law society, which maintains the Great Library, a leading law library in Toronto, provided the profession with two methods of copying cases and other legal materials. It ran a service that allowed lawyers to request a copy of a particular case or article. It also maintained several photocopiers that could be used by library patrons. The legal publishers objected to the law society's copying practices and sued for copyright infringement. They maintained the materials being copied were subject to copyright protection and the law society was authorizing others to infringe their copyright.It is worth examining the outcome of the case as well as the court's analysis from four perspectives, each of which is progressively more significant.First, the case can be examined from the perspective of the litigants. The law society emerged victorious on most counts in this regard as the court ruled it had neither infringed the publishers' copyright nor authorized others to do so. The case, however, was not a complete loss from the publishers' perspective. The court affirmed that although the legal decisions themselves were not subject to copyright, its test for originality ensured the value-added material supplied by the publishers, including summaries of the cases and the specific compilation of decisions, was sufficiently original to warrant copyright protection.Second, the case can be examined from the perspective of the court's interpretation of several important aspects of copyright law. The court provided a detailed discussion of the fair dealing exception (the Canadian counterpart to the U.S. fair use doctrine), and concluded the exception should be granted a large and liberal interpretation. In fact, the court remarkably fashions exceptions to copyright infringement as new copyright rights users' right that must be balanced against the rights of copyright owners and creators.The court also adopted an important new standard for authorization, which has long been used by copyright owners to hold parties accountable for allowing others to infringe copyright. On this issue, the court ruled authorization should be taken to mean "sanction, approve or countenance" and concluded "a person does not authorize copyright infringement by authorizing the mere use of equipment (such as photocopiers) that could be used to infringe copyright."This finding will have an immediate impact on copyright issues involving the Internet. By adopting an approach that allows the providers of equipment to presume their equipment will be used lawfully, the court has opened the door to Internet service providers and even peer-to-peer providers to argue they legitimately presume their subscribers act lawfully and thus cannot be said to authorize copyright infringement. Third, the case can be examined from the court's broader perspective on copyright law. Just two years ago, the Supreme Court's view on copyright law was that it was there solely to benefit creators. Today, the court now speaks openly of users' rights and the need to balance rigorously the interests of creators and users.For example, in arriving at its interpretation of authorization, the court concluded that the "mere provision of photocopiers for the use of its patrons did not constitute authorization to use the photocopiers to breach copyright law" since taking the opposite approach "shifts the balance in copyright too far in favour of the owner's rights and unnecessarily interferes with the proper use of copyrighted works for the good of society as a whole." Similarly, its liberal interpretation of fair dealing is based on the analysis that "it is a user's right (and) in order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively."Balance as the central goal of copyright is likely to cause a significant reinterpretation of Canadian copyright law. As the court demonstrated in this case, taking users' rights seriously requires a careful examination of the effects of any copyright test on both users and creators. Moreover, the need for balance will affect not only the current version of Canada's Copyright Act but also any subsequent amendments. As Canada considers copyright reform similar to that found in the United States, those reforms will be interpreted and applied by Canadian courts with the overarching goal of maintaining an appropriate copyright balance.Fourth, and perhaps most important, this case signals a societal shift in views on copyright. This case may have been seen by the judges as a very personal one since the work at issue was their own and the conduct called into question the copying of cases something they themselves likely had done throughout their careers.These facts point to the growing personalization of copyright. Copyright is no longer viewed as being primarily about large-scale commercial infringement claims that do not resonate with the average person. Rather, copyright is now very personal, focusing on the work, creativity, and activities of millions of individuals including judges who will increasingly question standards of what is right and wrong through the lens of their own actions.As society has shifted in its view of copyright, so, too, have Canadian courts. The result is a genuine revolution in the state of Canadian copyright law that will manifest itself long after the current battle over peer-to-peer file sharing has been resolved.
Michael Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa and technology counsel with the law firm Osler Hoskin & Harcourt LLP. He is online at http://www.michaelgeist.ca and http://www.osler.com (mgeist@uottawa.ca). The opinions expressed herein are personal and do not necessarily reflect those of the University of Ottawa or Osler, Hoskin & Harcourt LLP.Additional articles by Michael Geist
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