Yesterday marked the seventh anniversary of the CCH Canadian decision. In this blog I have tended to focus on the fairness test that took form from the ruling and its implication for the importance of a multi-facetted inquiry into every act of copying. The anniversary date is a good time to remember that the case covered much more.
Tucked into my books is an old newspaper clipping titled “Photocopying not an automatic infringement of copyright laws.” In a space of 12 cm x 15 cm, reporter Janice Tibbetts succinctly captured and conveyed the main issues: (1) that copying in itself can be permissible within the mandate of copyright; (2) a library can provide copying services (subject to careful consideration) for its patrons; (3) the mere provision of equipment that could be used for copyright infringement is not authorization of infringement (emphasis added); and (4) a higher standard on the meaning of “originality” in terms of what qualifies for copyright protection.
The case offered much to Canadians. Fair dealing emerged as a robust principle instead of merely a defense against infringement. Institutions were provided instruction in how to shape their practices to be in accordance with the law. Yet a curious byproduct of the ruling seems to be more confusion over when and how to apply fair dealing. And forgotten is a tangential remark: Canadian libraries already had the right to stand in the shoes of their patrons for acts of fair dealing.
As some readers may recall the principle complaint in the case was the practice of the library of the Law Society of Upper Canada making copies of copyrighted material at the request of patrons. Key to the favourable outcome was the library’s clearly defined policy governing the requests for copies. Writing for the court, Chief Justice Beverly Mclaughlin noted:
Here, the Law Society’s dealings with the publishers’ works through its custom photocopy service were research-based and fair. The access policy places appropriate limits on the type of copying that the Law Society will do. If a request does not appear to be for the purpose of research, criticism, review or private study, the copy will not be made. If a question arises as to whether the stated purpose is legitimate, the reference librarian will review the matter. The access policy limits the amount of work that will be copied, and the reference librarian reviews requests that exceed what might typically be considered reasonable and has the right to refuse to fulfill a request.
(The complete access policy is quoted in the ruling; see paragraph 61.)
The High Court took pains to stipulate that fair dealing embodies not only individual behaviour but a system:
This comports with the purpose of the fair dealing exception, which is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works. Persons or institutions relying on the s. 29 fair dealing exception need only prove that their own dealings with copyrighted works were for the purpose of research or private study and were fair. They may do this either by showing that their own practices and policies were research-based and fair, or by showing that all individual dealings with the materials were in fact research-based and fair (emphasis added, para. 63).
Notably, while the library’s clientele included commercial law firms this was not a bar to the finding of fair dealing.
But the hidden gem in the ruling was the reminder that, with regard to fair dealing, libraries could act on behalf of their patrons:
In 1999, amendments to the Copyright Act came into force allowing libraries, archives and museums to qualify for exemptions against copyright infringement: S.C. 1997, c. 24. Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para.83).
Section 30.2.(1) reads as: “It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.”
Section 29 and 29.1 of the Copyright Act apply to research or private study, and, criticism and review, with the attendant conditions. Libraries et al. should take note of section 30.2(2); it is very specific to the purpose of research and private study; it allows reproduction of complete, single copies of articles taken from scholarly, scientific or technical periodicals. To qualify for Section 30.2 the library must be a nonprofit entity.
This exception was not relied upon in CCH Canadian: “The Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).” But Section 30.2 should not be forgotten.