Канада Жоғарғы Сотының авторлық құқық жөніндегі маңызды шешімі: CCH Canadian Ltd v Law Society of Upper Canada ісі

CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339, , is a landmark Supreme Court of Canada case that established the threshold of originality and the bounds of fair dealing in Canadian copyright law. A group of publishers sued the Law Society of Upper Canada for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.

Since 1954 the Law Society of Upper Canada, a statutory, non profit organization, offered request based photocopying services to students, members, the judiciary, and authorized researchers at their Great Library at Osgoode Hall. The Law Society provided single copies of legal articles, statutes, and decisions to those who requested them. It also allowed visitors to the Great Library to use photocopiers to make individual copies of works held by the library.,

Three of the largest publishers of legal sources, CCH Canadian Limited, Carswell Thomson Professional Publishing and Canada Law Book Inc., sued the Law Society for copyright infringement of 11 specific works based on these activities. They requested relief in the form a declaration of subsistence of copyright in these works and a permanent injunction barring the Great Library from reproducing these works or any other works published by the plaintiffs. In response, the Law Society argued that the services it offered were necessary to provide equal access to the library's collection of legal materials. Many of the materials held at the library are non circulating, which makes access to the original copies difficult to those who do not work near by. The Law Society sought a declaration that its activities did not infringe on the publishers' copyrights, by either the provision of a single copy of a work or by allowing patrons to avail themselves of the self service photocopiers.

In relation to the first issue, the Court looked at what is considered the meaning of "original work". Chief Justice McLachlin first remarked that copyright does not protect ideas, but rather their expression. In comparison with the similar US Supreme Court case of Feist Publications Inc. v. Rural Telephone Service, McLachlin rejected Justice O'Connor's "minimal degree of creativity" test but agreed with her assessment of the "sweat of the brow" approach and found it too low a requirement. Instead, McLachlin took the middle ground by requiring "that an original work be the product of an exercise of skill and judgment" where "skill" is "the use of one's knowledge, developed aptitude or practised ability in producing the work" and "judgment" is "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". As well, "[t]he 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." However, "creativity is not required to make a work 'original'." In concluding that all eleven works were protected by copyright, she noted that the creation of headnotes, summaries, and topical indices involved sufficient exercise of skill and judgment so as to render them "original" works. However, she also noted that the judgments themselves were not copyrightable, nor were the typographical corrections done by the editors sufficient to attract copyright protection.

The second issue was whether, by providing library patrons with access to photocopiers, the library was implicitly authorizing copyright infringement. McLachlin dismissed this argument by stating that providing access to a machine that could be used to infringe copyright does not suggest sufficient "authorization" to violate copyright. It is presumed that a patron with access to the machines would use them lawfully. However the presumption can be rebutted by evidence that shows "a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement". The publishers presented no such evidence. Finally, the Law Society did not have direct control of its patrons, as with a master servant relationship, and therefore could not be said that it exercised control over its patrons.

For the sale of a copy of copyrighted materials to involve secondary infringement, it must be shown that "(1) the copy must be the product of primary infringement; (2) the secondary infringer must have known or should have known that he or she is dealing with a product of infringement; and (3) the secondary dealing must be established; that is, there must have been a sale." Since McLachlin ruled that the copy was fair and therefore was not a product of primary infringement, the sale of the materials could not involve secondary infringement.

"In order to qualify as a library, the Great Library: (1) must not be established or conducted for profit; (2) must not be administered or controlled by a body that is established or conducted for profit; and (3) must hold and maintain a collection of documents and other materials that is open to the public or to researchers." Since McLachlin already concluded the library's dealings were fair, she did not need to rule on this issue. Regardless, she determined that the Great Library would have qualified for the library exemption.

Since the Great Library was found not to have infringed on copyrighted material, no determination was made as to whether the Court of Appeals was correct in denying injunctive relief.