CCH Canadian Ltd. et al. v. Law Society of Upper Canada, (2004) 317 N.R. 107 (SCC)

• Judge: McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2004), 317 N.R. 107 (SCC);2004 SCC 13;317 NR 107;[2004] SCJ No 12 (QL);30 CPR (4th) 1;236 DLR (4th) 395;[2004] CarswellNat 446;129 ACWS (3d) 177;[2004] 1 SCR 339;AZ-50223890;247 FTR 318;JE 2004-602

CCH Cdn. Ltd. v. LSUC (2004), 317 N.R. 107 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.R. TBEd. MR.006

The Law Society of Upper Canada (appellant/respondent on cross-appeal) v. CCH Canadian Limited (respondent/appellant on cross-appeal)

The Law Society of Upper Canada (appellant/respondent on cross-appeal) v. Thomson Canada Limited c.o.b. as Carswell Thomson Professional Publishing (respondent/appellant on cross-appeal)

The Law Society of Upper Canada (appellant/respondent on cross-appeal) v. Canada Law Book Inc. (respondent/appellant on cross-appeal) and Federation of Law Societies of Canada, Canadian Publishers' Council and Association of Canadian Publishers, and Société québécoise de gestion collective des droits de reproduction (COPIBEC) and the Canadian Copyright Licensing Agency (Access Copyright) (interveners)

(29320; 2004 SCC 13; 2004 CSC 13)

Indexed As: CCH Canadian Ltd. et al. v. Law Society of Upper Canada

Supreme Court of Canada

McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ.

March 4, 2004

Summary:

The Law Society of Upper Canada main­tained and operated the Great Library at Osgoode Hall in Toronto, a large reference and research library. The Great Library provided a request-based custom photocopy service (for a fee) for the legal community. Legal materials were reproduced by Great Library staff and delivered in person, by mail or by facsimile transmission to re­questers. The Great Library also main­tained free-standing photocopiers for unre­stricted use by library patrons (also for a fee). The plaintiffs, Canadian pub­lishers of law text­books, law reports and other legal publi­cations, sued the Law Society, alleging that its copying and faxing activities consti­tuted copyright infringement. In particular, the pub­lishers claimed subsistence and owner­ship of copy­right in: (a) three reported judi­cial deci­sions; (b) three headnotes to those re­ported judicial deci­sions, (c) the annotated Martin's Ontario Criminal Practice 1999; (d) a par­ticular case summary in the All Canada Weekly Sum­maries; (e) a topi­cal index; (f) a legal textbook; and (g) a mono­graph (a par­ticular chapter) in a textbook. The Law Society counter­claimed, seeking declar­ations regard­ing its copying activities.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 169 F.T.R. 1, held that the publishers had copyright in the Annotated Criminal Practice, the text book and the monograph, but not in the remaining works. The court declared that the Law Society infringed the publishers' copy­right in photocopying sub­stantial portions of the textbooks in issue and by distributing the copies by hand, facsimile, mail or courier. The court declined to grant any generalized declaratory or injunctive relief respecting the Law Society's custom photocopy service. The court declined to deal with the photo­copier issue. The publishers appealed and the Law Society cross-appealed, but did not challenge the trial judge's findings respecting the three works in which he found copyright to exist.

The Federal Court of Appeal, in a decision reported 289 N.R. 1, allowed the publishers' appeal in part, holding that all of the remain­ing works were original and covered by copyright. The court held that the Law Society infringed copyright in the works that were reproduced, but declined to grant broader declaratory relief or a per­manent injunction. The court dismissed the Law Society's cross-appeal, stating that the Law Society was not entitled to a declaration that it had not infringed the publishers' copyright in the works in issue in this case. The Law Society appealed and the publishers cross-appealed.

The Supreme Court of Canada allowed the Law Society's appeal. The court declared that the Law Society did not infringe copy­right by providing single copies of the pub­lishers' works to its members through the custom photocopy service. The court held that the judicial reasons in and of them­selves, without the headnotes, were not orig­inal works in which the publishers could claim copyright. The headnotes, the case sum­mary, the topical index and the judicial decisions accompanied by headnotes (when viewed as a compilation), were considered "orig­inal" and thus covered by copyright. How­ever, there was no infringement of the pub­lishers' copy­right because the Law Society's deal­ings with the works were for the purpose of research and were fair deal­ings within the meaning of s. 29 of the Copyright Act. The court also held that the Law Society did not authorize infringe­ment by maintaining self-service photo­copiers in the Great Library for use by its patrons. The court dismissed the publishers' cross-appeal, holding that there was no secondary infringe­ment by the Law Society, absent primary infringement, and that the fax transmissions were not com­munications to the public contrary to s. 3(1)(f) of the Copy­right Act. In light of the finding on appeal that the Law Society's dealings with the publishers' works were fair, it was not necessary for the court to decide whether the Great Library qualified for the library ex­emption under s. 30.2(1) of the Copyright Act; however, the court opined that the Great Library did indeed qualify for this exemption.

Copyright - Topic 3

General - Copyright Act - Interpretation - The Supreme Court of Canada stated that "in Canada, copyright is a creature of statute and the rights and remedies pro­vided by the Copyright Act are exhaustive ... In interpreting the scope of the Copy­right Act's rights and remedies, courts should apply the modern approach to statutory interpretation whereby 'the words of an Act are to be read in their entire context and in their grammatical and ordi­nary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament'..." - See paragraph 9.

Copyright - Topic 3

General - Copyright Act - Interpretation -The Supreme Court of Canada noted that the Copyright Act had dual objectives: "the Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemi­nation of works of the arts and intellect and obtaining a just reward for the creator ... The proper 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" -The court stated that in interpreting the Copyright Act courts should strive to maintain an appropriate balance between these two goals - See paragraph 10.

Copyright - Topic 1003

Works subject to copyright - Literary works (incl. compilations) - [See first Copyright - Topic 1034 ].

Copyright - Topic 1007

Works subject to copyright - Original works - Section 5 of the Copyright Act provided that copyright shall subsist in every "original" literary, dramatic, musical and artistic work - The Supreme Court of Canada discussed the competing views on the meaning of "original" in copyright law - The court rejected the "sweat of the brow" or "industriousness" approach to originality (i.e., if a work was more than a mere copy then it would be considered original) - The court considered the sweat of the brow approach to originality as too low a standard - The court also rejected the approach adopted by some courts that a work had to be creative to be original (i.e., the "creativity" approach), as being too high a standard - Rather, the court stated that the correct position on what constituted an original work within the meaning of the Copyright Act fell between these two extremes (i.e., what was required to attract copyright protection in the ex­pression of an idea was the exercise of skill and judgment) - See paragraph 16.

Copyright - Topic 1007

Works subject to copyright - Original works - The Supreme Court of Canada, per McLachlin, C.J.C., stated that "for a work to be 'original' within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the ex­pression of an idea is an exercise of skill and judgment. By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one's capacity for discernment or ability to form an opin­ion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce 'another' work would be too trivial to merit copyright protection as an 'original' work" - See paragraph 16.

Copyright - Topic 1007

Works subject to copyright - Original works - [See first Copyright - Topic 1034 ].

Copyright - Topic 1034

Works subject to copyright - Particular works - Reported judicial decisions, head­notes, annotated statutory instruments, texts, etc. - Three law book publishers claimed copyright in three reported judicial decisions accompanied by headnotes, the head­notes themselves, a particular case summary (i.e., a summary in the All Can­ada Weekly Summaries) and a topical in­dex which appeared as an appen­dix to the book Canada GST Cases (1997) - The Su­preme Court of Canada held that the case summary, the topical index, the headnotes and the report­ed judicial deci­sions (mean­ing the compila­tion of the headnote and the accompanying edited judicial reasons) were original works in which copyright sub­sisted - How­ever, the judicial reasons in and of them­selves, without the headnotes, were not original works in which the pub­lishers could claim copyright - See para­graphs 26 to 36.

Copyright - Topic 1034

Works subject to copyright - Particular works - Reported judicial decisions, head­notes, annotated statutory instruments, texts, etc. - The Supreme Court of Canada stated that "although headnotes are inspired in large part by the judgment which they summarize and refer to, they are clearly not an identical copy of the reasons. The authors must select specific elements of the decision and can arrange them in numerous different ways. Making these decisions re­quires the exercise of skill and judgment. The authors must use their knowledge about the law and developed ability to determine legal ratios to produce the head­notes. They must also use their capac­ity for discernment to decide which parts of the judgment warrant inclusion in the head­notes. This process is more than just a mechanical exercise. Thus the headnotes constitute 'original' works in which copy­right subsists" - See paragraph 30.

Copyright - Topic 1034

Works subject to copyright - Particular works - Reported judicial decisions, head­notes, annotated statutory instruments, texts, etc. - Three law book publishers claimed that copyright subsisted in a topi­cal index - The Supreme Court of Canada, per McLachlin, C.J.C., stated that "the topical index is part of the book Canada GST Cases, (1997). It provides a listing of cases with short headings to indicate the main topics covered by the decision and very brief summaries of the decisions. The Federal Court of Appeal held that the index was original in that it required skill and effort to compile. I agree. The author of the index had to make an initial deci­sion as to which cases were authorities on GST. This alone is a decision that would require the exercise of skill and judgment. The author also had to decide which head­ings to include and which cases should fall under which headings. He or she had to distill the essence of the decisions down to a succinct one-phrase summary. All of these tasks require skill and judgment that are sufficient to conclude that the topical index is an 'original' work in which copy­right subsists" - See paragraph 32.

Copyright - Topic 1034

Works subject to copyright - Particular works - Reported judicial decisions, head­notes, annotated statutory instruments, texts, etc. - Three law book publishers claimed that copyright subsisted in three edited judicial decisions accompanied by headnotes - The Supreme Court of Canada stated that "reported judicial decisions, when properly understood as a compilation of the headnote and the accompanying edited judicial reasons, are 'original' works covered by copyright ... The report­ed ju­dicial decisions here at issue meet the test for originality. The authors have ar­ranged the case summary, catchlines, case title, case information (the headnotes) and the judicial reasons in a specific man­ner. The arrangement of these different compo­nents requires the exercise of skill and judgment. The compilation, viewed global­ly, attracts copyright protection ..." - See paragraphs 33 and 34.

Copyright - Topic 1034

Works subject to copyright - Particular works - Reported judicial decisions, head­notes, annotated statutory instruments, texts, etc. - Three law book publishers claimed that copyright subsisted in three edited judicial decisions accompanied by headnotes - The Supreme Court of Canada held that copyright subsisted in the edited judicial decisions accompanied by head­notes when viewed as a compilation - "This said, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright. The changes made to judicial reasons are relatively trivial; the publishers add only basic factual informa­tion about the date of the judgment, the court and the panel hearing the case, coun­sel for each party, lists of cases, statutes and parallel citations. The publishers also correct minor grammatical errors and spell­ing mistakes. Any skill and judgment that might be involved in making these minor changes and additions to the judicial rea­sons are too trivial to warrant copyright protection. The changes and additions are more pro­perly characterized as a mere me­chanical exercise. As such, the reported reasons, when disentangled from the rest of the compilation - namely the headnote - are not covered by copyright. It would not be copyright infringement for someone to reproduce only the judicial reasons" - See paragraph 35.

Copyright - Topic 4412

Infringement of copyright - General prin­ciples - Secondary infringement - The Law Society of Upper Canada's Great Library at Osgoode Hall in Toronto offered a custom photocopy service (for a fee), including a facsimile service - Three law book publishers alleged that the Law Society infringed copyright in the pub­lishers' works by selling copies contrary to s. 27(2) of the Copyright Act - Under s. 27(2)(a) it was an infringement of copy­right to sell a copy of a work that the per­son knows or should have known infringed copyright (i.e., the practice of secondary infringement) - The Supreme Court of Canada held that the Law Society did not infringe copyright in reproducing the pub­lishers' works in response to re­quests under its custom photocopy ser­vice on the basis that the fair dealing de­fence applied -The court stated that absent primary in­fringement, there could be no secondary infringement - See para­graphs 80 to 82.

Copyright - Topic 4490

Infringement of copyright - Acts constitut­ing an infringement - Authorization to exer­cise rights reserved solely for author - [See first Copyright - Topic 4554 ].

Copyright - Topic 4495

Infringement of copyright - Acts constitut­ing an infringement - Photocopying - [See first Copyright - Topic 4645 ].

Copyright - Topic 4554

Infringement of copyright - Acts not con­stituting an infringement - Photocopying (incl. provision of self-service photo­copiers) - The Law Society's Great Library at Osgoode Hall in Toronto had free-stand­ing photocopiers for patrons to copy library materials for a fee - The Law Society posted a notice that certain copy­ing might infringe copyright and that it was not responsible for copyright infringe­ment by patrons - Three book publishers alleged copyright infringement, arguing that the Law Society implicitly authorized reproductions of their works by maintain­ing free-standing photocopiers - The Supreme Court of Canada held that the Law Society's mere provision of photo­copiers for the use of its patrons did not constitute authorization to use the photo­copiers to breach copyright law - There was no evidence that the photocopiers were used in a manner inconsistent with the law - The posting of the notice did not consti­tute an express acknowledgement of illegal activities - Further, even if there was evi­dence of the photocopiers having been used to infringe copyright, the Law Society lacked sufficient control over the Great Library's patrons to permit the conclusion that it sanctioned, approved or counten­anced the infringement - See paragraphs 37 to 46.

Copyright - Topic 4554

Infringement of copyright - Acts not con­stituting an infringement - Photocopying (incl. provision of self-service photo­copiers) - The Law Society of Upper Canada's Great Library at Osgoode Hall in Toronto offered a custom photocopy ser­vice (for a fee), including a facsimile service - Three law book publishers al­leged copyright infringement, arguing that facsimile trans­missions by the Law Society of their works by facsimile consti­tuted communi­ca­tion "to the public" by telecom­munica­tion contrary to the publish­ers' ex­clusive rights under s. 3(1)(f) of the Copy­right Act - The Law Society argued that the trans­mission of one work to one recipi­ent was not a communication "to the pub­lic" - The Fed­eral Court of Appeal held that a single telecommunication emanating from a single point and intended to be re­ceived at a single point was typically not a com­munication to the public - The Su­preme Court of Canada agreed with this conclusion (i.e., the fax transmissions were not communications to the public) - See paragraphs 77 to 79.

Copyright - Topic 4554

Infringement of copyright - Acts not con­stituting an infringement - Photocopying (incl. provision of self-service photo­copiers) - [See first Copyright - Topic 4645 ].

Copyright - Topic 4645

Defences - Fair dealing - The Law Society of Upper Canada's Great Library at Os­goode Hall in Toronto offered a non-profit custom photocopy service (for a fee) - The service operated in accordance with the Law Society's "Access to the Law" policy - Upon receiving a request from a lawyer, law student, member of the judici­ary or authorized researcher, the Great Library staff photocopied extracts from legal ma­terial within its collection and sent it to the requester - Three law book pub­lishers al­leged copyright infringe­ment - The Law So­ciety raised the defence of fair dealing under s. 29 of the Copyright Act - The Su­preme Court of Canada held the defence of fair dealing was established (i.e., although the publishers had copyright in their head­notes, compilations of headnotes and re­ported judicial decisions, topical indexes and case summaries, the Law So­ciety's deal­ings with the publishers works through its custom photocopy ser­vice were re­search-based and fair) - The Access To the Law Policy placed appropri­ate limits on the type and amount of copy­ing the Law Society could do - See para­graphs 47 to 73.

Copyright - Topic 4645

Defences - Fair dealing - Section 29 of the Copyright Act provided that "fair dealing for the purpose of research or private study does not infringe copyright" - The Su­preme Court of Canada held that the fair dealing exception should be interpreted restrictively - See paragraph 48.

Copyright - Topic 4645

Defences - Fair dealing - Section 29 of the Copyright Act provided that "fair dealing for the purpose of research or private study does not infringe copyright" - The Su­preme Court of Canada stated that the fair dealing exception is always available - That is, a library can always attempt to prove that its dealings with a copyrighted work are fair under s. 29 - It is only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Act to prove that it qualified for the library exemption -See paragraph 49.

Copyright - Topic 4645

Defences - Fair dealing - The Supreme Court of Canada, stated that the fair deal­ing exception under s. 29 of the Copyright Act was open to those who could show that their dealings with a copyrighted work were for the purpose of research or private study - "Research" was to be given a large and liberal interpretation in order to ensure that users' rights were not unduly con­strained - The court agreed with the Feder­al Court of Appeal that research was not limited to non-commercial or private con­texts - The court also agreed with the statement by the Federal Court of Appeal that "[r]esearch for the purpose of advising clients, giving opinions, arguing cases, preparing briefs and factums is nonetheless research" - The Supreme Court stated that "lawyers carrying on the business of law for profit were conducting research within the meaning of s. 29 of the Copyright Act" - See paragraph 51.

Copyright - Topic 4645

Defences - Fair dealing - Section 29 of the Copyright Act provided that "fair dealing for the purpose of research or private study does not infringe copyright" - The Su­preme Court of Canada noted that the Copy­right Act did not define what would be "fair" - The court stated that whether something was fair was a question of fact and would depend on the facts of each case - See paragraph 52.

Copyright - Topic 4645

Defences - Fair dealing - Section 29 of the Copyright Act provided that "fair dealing for the purpose of research or private study does not infringe copyright" - The Su­preme Court of Canada referred to the fol­low­ing factors as provid­ing a useful ana­lytical framework to help assess whether a par­ticular dealing was "fair" within the meaning of s. 29: "(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alterna­tives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work ..." - See para­graph 53.

Copyright - Topic 4649

Defences - Educational institutions, li­braries, archives and museums - The Law Society of Upper Canada's Great Library at Osgoode Hall in Toronto offered a non-profit custom photocopy service (for a fee) operated in accordance with the Law Society's "Access to the Law" policy - Upon receiving a request from a lawyer, law student, member of the judiciary or authorized researcher, the Great Library staff photocopied extracts from legal material within its collection and sent it to the requester - Three law book publishers alleged copyright infringe­ment - The Law Society argued that the Great Library qualified for an exemption as a "library, archive or museum" under ss. 2 and 30.2(1) of the Copyright Act - The Supreme Court of Canada held that the Great Library's copying of the law book publishers' copyrighted material was sub­ject to the fair dealing defence and there­fore the Law Society did not need to rely on the library exemption - However were it necessary to do so, the Great Library was entitled to rely on the library exemp­tion - See para­graphs 83 and 84.

Copyright - Topic 4649

Defences - Educational institutions, li­braries, archives and museums - [See third Copyright - Topic 4645 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Inter­pretation by context (incl. "modern rule") - General principles - [See first Copyright - Topic 3 ].

Words and Phrases

Original - The Supreme Court of Canada discussed the meaning of the word "orig­inal" as used in ss. 2 and 5 of the Copy­right Act, R.S.C. 1985, c. C-42 - See paragraphs 14 to 18.

Words and Phrases

Research - The Supreme Court of Canada discussed the meaning of the word "research" as used in s. 29 of the Copy­right Act, R.S.C. 1985, c. C-42 - See paragraph 51.

Cases Noticed:

Moreau v. St-Vincent, [1950] Ex. C.R. 198, refd to. [para. 8].

Goldner v. Canadian Broadcasting Corp. (1972), 7 C.P.R.(2d) 158 (F.C.T.D.), refd to. [para. 8].

Grignon v. Roussel et al. (1991), 44 F.T.R. 121; 38 C.P.R.(3d) 4 (T.D.), refd to. [para. 8].

Théberge v. Galerie d'Art du Petit Champlain inc. et al., [2002] 2 S.C.R. 336; 285 N.R. 267; 2002 SCC 34, refd to. [para. 9].

Bishop v. Stevens - see Bishop v. Télé-Métropole Inc.

Bishop v. Télé-Métropole Inc., [1990] 2 S.C.R. 467; 111 N.R. 376, refd to. [para. 9].

Blue Crest Music Inc. et al. v. Compo Co., [1980] 1 S.C.R. 357; 29 N.R. 296, refd to. [para. 9].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 9].

University of London Press Ltd. v. Univer­sity Tutorial Press Ltd., [1916] 2 Ch. 601, refd to. [para. 15].

U & R Tax Services Ltd. v. H & R Block Canada Inc. (1995), 97 F.T.R. 254; 62 C.P.R.(3d) 257 (T.D.), refd to. [para. 15].

Feist Publications Inc. v. Rural Telephone Service Co. (1991), 499 U.S. 340, refd to. [para. 15].

Tele-Direct (Publications) Inc. v. American Business Information Inc., [1998] 2 F.C. 22; 221 N.R. 113 (F.C.A.), refd to. [para. 15].

Edutile Inc. v. Automobile Protection Association, [2000] 4 F.C. 195; 255 N.R. 147 (F.C.A.), refd to. [para. 21].

Slumber-Magic Adjustable Bed Co. v. Sleep-King Adjustable Bed Co. (1984), 3 C.P.R.(3d) 81 (B.C.S.C.), refd to. [para. 33].

Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., [1964] 1 All E.R. 465 (H.L.), refd to. [para. 33].

Composers, Authors and Publishers Asso­ciation of Canada Ltd. v. CTV Tele­vision Network Ltd., [1968] S.C.R. 676, refd to. [para. 37].

Muzak Corp. v. Composers, Authors and Publishers Association of Canada Ltd., [1953] 2 S.C.R. 182, appld. [para. 38].

de Tervagne et al. v. Beloeil (Ville) et al., [1993] 3 F.C. 227; 65 F.T.R. 247 (T.D.), refd to. [para. 38].

CBS Inc. v. Ames Records & Tapes, [1981] 2 All E.R. 812 (Ch. D.), refd to. [para. 38].

Moorhouse v. University of New South Wales, [1976] R.P.C. 151 (Aust. H.C.), not folld. [para. 40].

Hubbard v. Vosper, [1972] 1 All E.R. 1023 (C.A.), refd to. [para. 52].

Associated Newspapers Group plc v. New Group Newspapers Ltd., [1986] R.P.C. 515 (Ch. D.), refd to. [para. 54].

Sillitoe v. McGraw-Hill Book Co. (U.K.), [1983] F.S.R. 545 (Ch. D.), refd to. [para. 55].

Beloff v. Pressdran Ltd., [1973] 1 All E.R. 241 (Ch. D.), refd to. [para. 58].

Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] F.S.R. 610 (C.A.), refd to. [para. 59].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 2, sect. 5 [para. 14]; sect. 27(1) [para. 37]; sect. 29 [para. 47]; sect. 30.2(1) [para. 83].

Authors and Works Noticed:

Craig, Carys J., Locke, Labour and Limit­ing the Author's Right: A Warning against a Lockean Approach to Copyright Law (2002), 28 Queen's L.J. 1, generally [para. 23].

Dimock, R.E., Intellectual Property Dis­putes: Reso­lutions & Remedies (2002), vol. 2, p. 15-4 [para. 85].

Driedger, E.A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 9].

Gervais, Daniel J., Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law (2002), 49 J. Copyright Soc'y U.S.A. 949, p. 961 [para. 18].

Handa, Sunny, Copyright Law in Canada (2002), p. 209 [para. 14].

Hitchcock, P.D., Home Copying and Authorization (1983), 67 C.P.R.(2d) 17, pp. 29 to 33 [para. 38].

Kierans, Patrick E., and Borenstein, Ro­wena, Injunctions - Interlocutory and Permanent, in Dimock, Ronald E., Intellectual Property Disputes: Resolutions & Remedies (2002), vol. 2, p. 15-4 [para. 85].

Litman, Jessica, The Public Domain (1990), 39 Emory L.J. 965, p. 969 [para. 23].

McKeown, John S., Fox Canadian Law of Copyright and Industrial Designs (4th Ed.) (Looseleaf), pp. 21-104 [para. 38]; 23-6 [paras. 52, 54].

Ricketson, Sam, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (1987), pp. 900, 901 [para. 19].

Vaver, David, Copyright Law (2000), pp. 27 [para. 41]; 191 [para. 56].

Counsel:

R. Scott Joliffe, L.A. Kelly Gill and Kevin J. Sartorio, for the appellant/respondent on cross-appeal;

Roger T. Hughes, Q.C., and Glen A. Bloom, for the respondents/appellants on cross-appeal;

Kevin L. LaRoche, for the intervener, the Federation of Law Societies of Canada;

Thomas G. Heintzman, Q.C., and Barry B. Sookman, for the interveners, the Cana­dian Publishers' Council and the Associ­ation of Canadian Publishers;

Claude Brunet, Benôit Clermont and Made­leine Lamothe-Samson, for the in­ter­veners, Société québécoise de gestion collective des droits de reproduction (COPIBEC) and the Canadian Copyright Licensing Agency (Access Copyright).

Solicitors of Record:

Gowling Lafleur Henderson, Toronto, Ontario, for the appellant/respondent on cross-appeal;

Sim Hughes Ashton & McKay, Toronto, Ontario, for the respondents/appellants on cross-appeal;

Borden Ladner Gervais, Ottawa, Ontario, for the intervener, Federation of Law Societies of Canada;

McCarthy, Tétrault, Toronto, Ontario, for the Canadian Publishers' Council and the Association of Canadian Publishers.

Ogilvy Renault, Montreal, Quebec, for the interveners, Société québécoise de ges­tion collective des droits de reproduction (COPIBEC) and the Canadian Copyright Licensing Agency (Access Copyright).

This appeal was heard on November 10, 2003, before McLachlin, C.J.C, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada. The following decision of the court was delivered in both official languages on March 4, 2003, by McLachlin, C.J.C.