E. Copyright Issues Affecting Legal Research and Writing

AuthorTed Tjaden
ProfessionNational Director of Knowledge Management McMillan LLP
Pages27-33

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Related to issues of citation are issues of copyright law. In Canada, copyright law is governed by the Copyright Act.45Under that Act, the owner of the copyright in a literary work (i.e., a legal textbook, for example) has

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the sole right to produce or reproduce the work or any substantial part thereof in any material form.46Users are given relatively limited rights to copy protected works. One exemption to copyright is the defence of "fair dealing" for the purpose of research or private study (with various conditions attached).47Therefore, for legal researchers, the issue that arises is determining when permission from the copyright owner is needed for the use of law-related resources.

For government works, the issue is affected Crown copyright, which states that the government retains copyright in any work that has been prepared or published by or under the direction or control of Her Majesty or any government department.48The notion that the government would insist upon Crown copyright over legislation and cases has been criticized by academic commentators.49A more preferable viewpoint would be that all works produced under authority of the government are in the public domain for the benefit of all to use, subject possibly to the right of the government to claim any "moral rights" in its works when necessary to protect the accuracy or representation of the work.50Alternatively, if the government insists on maintaining a Crown copyright in its works, an argument could likely be made on philosophical grounds that all citizens, as taxpayers, have an implicit, royalty-free licence to use government works.

Fortunately, the Canadian federal government has largely resolved some of these issues as they affect legal research materials through its issuance of the Reproduction of Federal Law Order51which allows cases and legislation issued under authority of the government to be freely

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used so long as any reproductions are accurate and not represented as official versions:52Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.

For private legal publishers, the issues are slightly different. Most, if not all, of these publishers will own copyright in their textbooks, case law reporters, and other law-related publications. Technically, unless one were able to rely upon the "fair dealing" provisions of the Act - which are relatively narrow - it would be necessary, for example, to obtain the permission of the applicable publisher to photocopy material for court or to cite passages in one’s court factum from a publisher’s textbook. As a practical matter, legal publishers have not pursued copyright infringement claims against individual lawyers or law firms, although Access Copyright,53the national copyright collective in Canada that represents authors, has in the past announced a collective photocopying licence for law firms that it intends to negotiate with lawyers that would, for a negotiated flat fee, give permission for lawyers and employees at the firm to photocopy from published works. The Federation of Law Societies of Canada, however, has taken a cautious approach to such licences.54Of particular interest to the legal community is the recent Supreme Court of Canada decision in CCH Canadian Ltd. v. Law Society of Upper Canada,55arising from a ten-year dispute between several Canadian legal publishers and the Law Society of Upper Canada. The publishers alleged, among other things, that the photocopying service provided

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by the Law Society’s law library infringed the copyright of these legal publishers.

Chief Justice MCLACHLIN, speaking for the Court, ruled largely in favour of the Law Society. It was held that, although copyright existed in the publishers’ works under consideration, the copying done by the Great Library was fair dealing with the publishers’ works. In addition, the Court also ruled that the Great Library did not authorize copyright infringement by the mere fact of supplying self-service photocopiers in its library. The Court also ruled that fax transmissions of photocopy requests to individual patrons were not "communications to the public."

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