The great library: copyright law and access to justice

Matthew Rimmer,
ALIA copyright and intellectual property policy and advisory group

In November 2003, the Supreme Court of Canada heard arguments over an important copyright case, which will have ramifications for libraries and archives. The matter involves the Law Society of Upper Canada and a number of legal publishers - including CCH Canadian Limited, Canada Law Book Incorporated and Carswell. The case will involve questions about originality, the defence of fair dealing and other copyright exemptions, and the protection of access to justice under the Canadian Charter of Rights and Freedoms.

The Law Society of Upper Canada governs the legal profession in Ontario, and operates the Great Library at Osgoode Hall in Toronto. The Law Society operates a photocopying service that copies portions of the three legal publishers' materials on request for a fee. The service includes the delivery of print and facsimile copies to its customers who are generally lawyers and law firms in Ontario. It also provides free-standing photocopiers in the Great Library. The Law Society does not monitor the use of these photocopiers but does post notices disclaiming responsibility for infringing copies made by the users of the photocopiers. The legal publishers assert that copyright subsists in their material, and that the Law Society infringed those copyrights through its photocopying service and by making free-standing photocopiers available in the Great Library.

At first instance, the trial judge, Justice Gibson held that copyright did not subsist in the publishers' reported judicial decisions, head-notes, case summaries, and topical indexes. [CCH Canadian Ltd v Law Society of Upper Canada, [2000] 2 F.C. 451 http://www.canlii.org/ca/cas/fct/1999/1999fct10004.html] There was a lack of originality in such published material. However, his Honour found that the Law Society did infringe the publishers' copyrights in those works in which copyrighted subsisted - such as secondary materials. The trial judge found that the activities of the Great Library did not fall within the defence of fair dealing because they did not involve purposes such as research and study. His Honour also rejected arguments of the Law Society that it should not be held liable based on various public policy, equitable and constitutional defences - such as the rule of law, equality, and access to justice.

On appeal, the Full Federal Court first considered whether copyright subsisted in the publishers' material. [CCH Canadian Ltd v Law Society of Upper Canada, [2002] 4 F.C. 213, 2002 FCA 187, http://www.canlii.org/ca/cas/fca/2002/2002fca187.html] Justice Linden held that 'there is no universal requirement of "creative spark" or "imagination" in Anglo-Canadian copyright law'. The judge noted: 'To ignore this basic axiom is to intrude on the domain of critics and become appraisers of merit instead of arbiters of originality'. Justice Linden said:

Admittedly, the public interest in the dissemination of works may be a policy reason to impose a high standard of 'creativity' as a prerequisite to copyright protection. There is also the concern that overprotection of certain works will thwart social and scientific progress by precluding persons from building upon earlier works. However, I would suggest that copyright monopolies are better controlled through the avenues that Parliament has established than through the imposition of an arbitrary and subjective standard of 'creative spark' or imagination.

Applying this rigid logic, the Full Federal Court held that copyright did subsist in material - such as judicial decisions, head-notes, case summaries, and topical indexes. This decision is similar to the position taken in Australia where it has been found that even the white pages and the yellow pages have sufficient originality to be protected under copyright law. [Telstra v Desktop Marketing Systems [2001] FCA 612; Desktop Marketing Systems v Telstra [2002] FCAFC 112 http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/112.html, and; unsuccessful attempt to seek special leave from the High Court in Desktop Marketing Systems v Telstra [2003] http://www.austlii.edu.au/au/other/hca/transcripts/2002/M85/1.html] There is a real danger that the requirement of originality has been transformed into an empty, nominal standard.

The appeal also considered whether any exemptions or defences apply to the Law Society. Justice Linden articulated the general principles in relation to the defence of fair dealing for the purpose of research and private study:

The Law Society attempts to fulfil an honourable mandate of providing the community with access to its extraordinary collection of legal resources. Indeed, the Great Library serves an important purpose in disseminating the knowledge and wisdom contained within its archives... There is no doubt that the Law Society generally acts in good faith and discourages abuses of its services. However, even though the Law Society's purposes may be selfless, this does not mean that the same can always be said of all patrons of the photocopying service.

The judge observed that there was insufficient evidence in the case to make a definitive conclusion on the fairness of the dealings by the Law Society. Justice Linden observed that the Great Library was a library for the purposes of the exemption for libraries under section 30.2 of the Canadian Copyright Act because it was not operated for profit. The judge held that the Law Society could not rely upon the exemption for free-standing photocopiers because it had not entered into any agreement with any collecting society or satisfied a number of statutory criteria.

The Full Federal Court also refused to accept the arguments of the Law Society that its photocopying services were defended by constitutional values protected under the Canadian Charter of Rights and Freedoms, such as the rule of law, equality, and access of justice. Justice Linden did not believe that 'the public interest in the due administration of justice, the maintenance of the rule of law and the enhancement of basic constitutional values through relatively equal, unrestricted access to the law would be significantly impaired through recognition and enforcement of any copyright interests that the plaintiffs might have in the works in issue'. His Honour added that 'the Publishers' rights must also be fairly recognised in order to guarantee incentives to continue to provide original legal publications, in furtherance of the values the Law Society describes'. The case shows - once again - the difficulties involved in subjecting copyright law to constitutional review.

The Supreme Court of Canada has granted leave to appeal in the copyright case involving the Law Society of Upper Canada and Canada's leading legal publishers. The appeal was scheduled for 10 November 2003. The Supreme Court of Canada has taken an active interest of late in copyright law. It emphasised in the Théberge case the importance of the wider public interest served by the law:

Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilisation. This is reflected in the exceptions to copyright infringement... which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and 'ephemeral recordings' in connection with live performances. [Théberge v. Galerie d'Art du Petit Champlain inc (2002), 210 D.L.R. (4th) 385; 23 B.L.R. (3d) 1; 17 C.P.R. (4th) 161; 285 N.R. 267 (S.C.C.), http://www.canlii.org/ca/cas/scc/2002/2002scc34.html]

The Supreme Court of Canada may well reconsider the low threshold of originality that was set by the Federal Court. It could also take a more expansive reading of the defence of fair dealing and other exceptions to copyright infringement in light of wider constitutional concerns about the access to justice.

The legal action should serve as an important warning to Australian libraries and archives. Copyright owners are seeking to lower the threshold of originality, and thereby expand the scope of copyrightable subject matter. They are also pushing to narrow exceptions to copyright infringement - such as the defence of fair dealing and exceptions for libraries. In current policy discussions, copyright collecting societies have lobbied for the open-ended definition of libraries that exists under the Australian Copyright Act 1968 (Cth) to be limited to 'non-profit' libraries. If such reforms are passed, libraries embedded in commercial entities like law firms could be exposed to copyright actions of the kind launched against the Law Society of Upper Canada.

Dr Matthew Rimmer is a lecturer in the Faculty of Law at The Australian National University. He is a member of the Copyright and Intellectual Property Committee of ALIA.

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