A Supreme Court of Canada ruling that the Law Society of Upper Canada did not break the law by photocopying case material for lawyers has broader implications for other individuals and businesses that face copyright challenges, observers say.
Last Thursday, the ruling overturned a lower court judgment that said the Law Society -- the governing body for Ontario lawyers -- had violated the copyrights of three legal publishers by selling their work at the Great Library at Osgoode Hall in Toronto without paying a licensing fee.
"It's the most important copyright law we have had in Canada in years," Michael Geist, a law professor at the University of Ottawa, said in an interview. "It has the potential to impact every aspect of copyright -- not just the legal publishers."
Scott Jolliffe, lawyer for the Law Society, said that the most apparent impact is that all lawyers in Ontario will continue to have "equal access" to materials at the Great Library.
"For somebody practising in the northern regions -- where there may not be a county court library and where their practice is such that they cannot afford to have a full or complete library -- they would still have access to the law," said Mr. Jolliffe, managing partner at Gowling Lafleur Henderson.
But the judgment has wider implications in that anyone can now make a single copy of any copyrighted material for research purposes -- be it for an academic or commercial undertaking -- and not pay a licensing fee to its creator under the notion of "fair dealing," he added.
"It applies to journalists, economists [for example]working at the Bank of Canada or Royal Bank, students at university, and kids doing their research projects at home and downloading an article from the Internet -- provided it is done for the purpose of research," Mr. Jolliffe said. "The court is balancing a decision in favour of users' rights as opposed to creators' research."
The landmark ruling stems from court action first taken in 1993 when Canada's three largest legal publishers -- CCH Canadian Ltd., Canada Law Book Inc. and Carswell, a division of Thomson Canada Ltd. -- alleged they were being deprived of licensing fees from more than 100,000 pages copied yearly at the Great Library by lawyers and students.
Another key element of the judgment is the fact that it ruled that the Law Society did not authorize copyright infringement by providing self-service photocopiers in the Great Library -- a position that legal experts say could have implications for businesses related to the Internet.
The ruling could affect sellers of MP3 technology, which plays music that could be downloaded illegally from the Internet, Mr. Jolliffe said. "The court has said that, merely providing or selling the means to make copies [or play illegal copies in this instance]doesn't mean one is liable for infringement."
Prof. Geist, meanwhile, said this section of the judgment has the potential to influence court cases pitting Internet service providers against the Canadian music industry. Last month, the Canadian Recording Industry Association asked for a federal court to order ISPs to disclose the identities of 29 alleged music swappers -- that is, users who post songs on the Internet for others to copy.
In another case before the Supreme Court of Canada, the Society of Composers, Authors and Music Publishers of Canada (SOCAN), argues that ISPs should pay a blanket royalty for Canadian music downloaded by the public anywhere in the world.
Ian Hembery, interim president of the Canadian Association of Internet Providers, said the latest copyright ruling should support its argument that its members are merely a conduit between people and websites, and are not ultimately responsible for the actions of its subscribers.
"Because we give somebody access to the Internet, we certainly don't authorize copyright infringement," Mr. Hembery said. "It's really the responsibility of the subscriber to perform legal acts, and obviously that is what the decision says."
Even though the legal publishers lost their battle against the Law Society, it does claim a certain victory because the high court also ruled that legal publications, including head notes, case summaries, topical indexes and reported decisions are "original" works, and protected by copyright. Original work need not be creative, but it must be "the product of skill and judgment that is more than trivial," the ruling said.
Ian Rhind, president of CCH Canadian, said that assertion is significant for his industry because it acknowledges that legal publications do in fact have copyright protection although "getting people to respect that copyright" is a different story. "I am not happy the [Great]library can have a photocopier there," he said. "It's like having a fox in a hen house."
Mark Hayes, a copyright and technology lawyer for Ogilvy Renault, said the "originality" test is an important part of court ruling because there has been confusion as to whether compilations -- like telephone directories -- are protected by copyright.
"This is important because the Internet has created a huge amount of information out there that people are claiming copyright on."