Copyright and the Law LibraryCopyright and the Law LibraryPresentation to thePresentation to the

Vancouver Association of Law LibrariesVancouver Association of Law Libraries

Christopher S. WilsonChristopher S. WilsonOctober 24, 2002October 24, 2002

Bull,

Housser

& Tupper

Bull,

Housser

& Tupper

““Judicial” WorksJudicial” Works• Copyright subsists in:Copyright subsists in:

– published judicial decisions as a whole, published judicial decisions as a whole, containing headnotes, summaries, etc.containing headnotes, summaries, etc.•but not necessarily the underlying decisions but not necessarily the underlying decisions

themselvesthemselves

– headnotes and case summariesheadnotes and case summaries– indexesindexes– articles in journalsarticles in journals– annotated statutesannotated statutesPer: CCH Canadian Ltd. Per: CCH Canadian Ltd. v. v. Law Society of Law Society of

Upper Canada (May 2002, Federal Court Upper Canada (May 2002, Federal Court of Appeal)of Appeal)

Fair DealingFair Dealing

• Fair dealing is a defence to Fair dealing is a defence to copyright infringementcopyright infringement

• To be considered fair dealing, an To be considered fair dealing, an activity must be:activity must be:

(a)(a) For an allowable purpose; andFor an allowable purpose; and

(b)(b) FairFair

Fair DealingFair Dealing

• Allowable purposeAllowable purpose– researchresearch

• includes research for a commercial purposeincludes research for a commercial purpose

• articled student makes a copy for client researcharticled student makes a copy for client research

– private studyprivate study• articled student makes a copy for his or her own articled student makes a copy for his or her own

learninglearning

– criticism or reviewcriticism or review• must cite the source of the workmust cite the source of the work

– news reportingnews reporting• must cite the source of the workmust cite the source of the work

Fair DealingFair Dealing• Allowable purposeAllowable purpose

– A library (whether for-profit or non-A library (whether for-profit or non-profit) may adopt the purpose of its profit) may adopt the purpose of its customer if it has no ulterior motive and customer if it has no ulterior motive and would not carry out the activity but for would not carry out the activity but for the customer’s requestthe customer’s request

•CCH Canadian CCH Canadian at para. 132at para. 132

– This does not necessarily mean the This does not necessarily mean the dealing is fairdealing is fair

Fair DealingFair Dealing

• Allowable Purpose: Non-profit librariesAllowable Purpose: Non-profit libraries– ExemptionExemption

•specifically provides that non-profit libraries may specifically provides that non-profit libraries may adopt the purpose of their customers: s. 30.2adopt the purpose of their customers: s. 30.2

– Must be a library, archive or museumMust be a library, archive or museum– Non-profit:Non-profit:

•Must not be established or conducted for profitMust not be established or conducted for profit

•Must not be administered by a body that is Must not be administered by a body that is established or conducted for profitestablished or conducted for profit

Fair DealingFair Dealing

• FairnessFairness– PurposePurpose of the dealing of the dealing

• Specific research or Specific research or compiling a library of compiling a library of materialsmaterials

– CharacterCharacter of the of the dealingdealing• Private vs. public dealingPrivate vs. public dealing

– AlternativesAlternatives to the to the dealingdealing

– AmountAmount of the of the dealingdealing• Multiple decisions Multiple decisions

from the same series from the same series or volume over a or volume over a short period of time?short period of time?

– NatureNature of the work of the work– EffectEffect of the dealing of the dealing

on the workon the work• CompetitionCompetition

Fair DealingFair Dealing• Lessons from Lessons from CCH CanadianCCH Canadian::

– Good faith reliance on a copyright policy is not Good faith reliance on a copyright policy is not sufficient to absolve liabilitysufficient to absolve liability

– Requiring customers to state and record their Requiring customers to state and record their purpose minimizes but does not eliminate the riskpurpose minimizes but does not eliminate the risk

– Photocopying reasons for judgment only, without Photocopying reasons for judgment only, without other features, may not be copyright other features, may not be copyright infringementinfringement

– A copyright license is likely necessary, but A copyright license is likely necessary, but libraries have an argument to limit its scope (and libraries have an argument to limit its scope (and cost)cost)

Electronic AccessElectronic Access• HyperlinksHyperlinks

– Deep linkingDeep linking– Compilations of linksCompilations of links– Linking to illegal contentLinking to illegal content

• as copyright infringementas copyright infringement

• as republication of defamationas republication of defamation

• FramingFraming– Less common, but still problematicLess common, but still problematic– Copyright and moral rights infringement, trade-Copyright and moral rights infringement, trade-

mark infringement, etc.mark infringement, etc.

• CD-ROMsCD-ROMs

Further DiscussionFurther Discussion

Christopher S. Wilsoncxw@bht.com (604) 641-4841

Bull, Housser & Tupper