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.
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...to: Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339; Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326; Alberta......
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Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30
...York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339; Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, [2019] 3 S.C.R. 418; Muzak Corp. v. Composers, Authors and Publish......
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Exceptions From Consent In PIPEDA: Facial Recognition, Privacy And Clearview
...paras. 37-38; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 28. 4 See, CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 at para. 48. 5 Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (CanLII), [2013]......
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Bill C-11 - Canada's 'New and Improved' Copyright Act
...copyright law in Canada: Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC 34 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 Robertson v. Thomson Corp.,......
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Copyright - 2017 Year In Review
...also before the 'fairness' factors were expounded upon by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada (2004 SCC 13). It will be interesting to see whether the Federal Court's approach in Michelin will be revisited in view of the United United may be a case ......
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Obituary Piracy Assessed
...the Afterlife website with most having both a photo and obituary text. The Court applied CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 to find that the obituaries and photographs were original works in which copyright subsisted. The Court found the postings o......
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Table of Cases
...100 Catherwood (Guardian ad litem of) v Heinrichs, [1996] BCJ No 1373 (SC) ....179, 180 CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 ..............309, 320, 322, 323, 324, 325–26, 327, 328, 329, 330, 331, 333 Chamberlain v Surrey School District No 36, 2002 SCC 86 .................
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Management and Enforcement
...note 177; Close Up , above note 108. 189 CCH Canada Ltd. v. Law Society of Upper Canada , 2002 FCA 187 at [63] (unaffected on appeal, [2004] 1 S.C.R. 339) [ CCH ]; Jules Jordan , above note 149 at [15]–[16]; Apotex , above note 99 at [43] (patents). 190 Cheaptickets , above note 180 at [9].......
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Table of cases
...v Flemming, 2015 PECA 9 ............................................................. 22 CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, rev’g 2002 FCA 187, rev’g (1999), [2000] 2 FC 451, 179 DLR (4th) 609, [1999] FCJ No 1647 (TD) .....................................................
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Table of Cases
...3, 36 C.P.R. (3d) 417, [1991] F.C.J. No. 613 (T.D.) .............................. 96 CCH Canada Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, 18 C.P.R. (4th) 161, var’g 2002 FCA 187, 289 N.R. 1, 18 C.P.R. (4th) 161..................... 20, 24, 47, 57, 58, 60, 65, 9......