1. Copyright and the Law Library Presentation to the Vancouver Association of Law Libraries Christopher S. Wilson October 24, 2002 Bull, Housser & Tupper Bull, Housser & Tupper

2. “Judicial” Works Copyright subsists in: Copyright subsists in: –published judicial decisions as a whole, containing headnotes, summaries, etc. but not necessarily the underlying decisions themselves but not necessarily the underlying decisions themselves –headnotes and case summaries –indexes –articles in journals –annotated statutes Per: CCH Canadian Ltd. v. Law Society of Upper Canada (May 2002, Federal Court of Appeal)

3. Fair Dealing Fair dealing is a defence to copyright infringement Fair dealing is a defence to copyright infringement To be considered fair dealing, an activity must be: To be considered fair dealing, an activity must be: (a)For an allowable purpose; and (b)Fair

4. Fair Dealing Allowable purpose Allowable purpose –research includes research for a commercial purpose includes research for a commercial purpose articled student makes a copy for client research articled student makes a copy for client research –private study articled student makes a copy for his or her own learning articled student makes a copy for his or her own learning –criticism or review must cite the source of the work must cite the source of the work –news reporting must cite the source of the work must cite the source of the work

5. Fair Dealing Allowable purpose Allowable purpose –A library (whether for-profit or non-profit) may adopt the purpose of its customer if it has no ulterior motive and would not carry out the activity but for the customer’s request CCH Canadian at para. 132 CCH Canadian at para. 132 –This does not necessarily mean the dealing is fair

6. Fair Dealing Allowable Purpose: Non-profit libraries Allowable Purpose: Non-profit libraries –Exemption specifically provides that non-profit libraries may adopt the purpose of their customers: s. 30.2 specifically provides that non-profit libraries may adopt the purpose of their customers: s. 30.2 –Must be a library, archive or museum –Non-profit: Must not be established or conducted for profit Must not be established or conducted for profit Must not be administered by a body that is established or conducted for profit Must not be administered by a body that is established or conducted for profit

7. Fair Dealing Fairness Fairness –Purpose of the dealing Specific research or compiling a library of materials Specific research or compiling a library of materials –Character of the dealing Private vs. public dealing Private vs. public dealing –Alternatives to the dealing –Amount of the dealing Multiple decisions from the same series or volume over a short period of time? –Nature of the work –Effect of the dealing on the work Competition

8. Fair Dealing Lessons from CCH Canadian: Lessons from CCH Canadian: –Good faith reliance on a copyright policy is not sufficient to absolve liability –Requiring customers to state and record their purpose minimizes but does not eliminate the risk –Photocopying reasons for judgment only, without other features, may not be copyright infringement –A copyright license is likely necessary, but libraries have an argument to limit its scope (and cost)

9. Electronic Access Hyperlinks Hyperlinks –Deep linking –Compilations of links –Linking to illegal content as copyright infringement as copyright infringement as republication of defamation as republication of defamation Framing Framing –Less common, but still problematic –Copyright and moral rights infringement, trade-mark infringement, etc. CD-ROMs CD-ROMs

10. Further Discussion Christopher S. Wilson cxw@bht.com (604) 641-4841 Bull, Housser & Tupper