CCH Canadian Ltd v. Law Society of Upper Canada

Quick Summary

Publishers sued the Law Society of Upper Canada over copying at the Great Library. The Supreme Court of Canada said the library’s dealings were fair under s.29. The Court set the originality test as “skill and judgment”—more than mechanical work, but not necessarily creative in a novel sense. Self-service copiers did not mean the library authorized infringement.

Issues

• Are the Law Society’s dealings with publishers’ works fair dealings under s.29?
• Did the Great Library authorize infringement by providing self-service photocopiers and access to works?
• Are the publishers’ materials original works protected by copyright?

Rules

• Originality Test: A work is original if it shows skill and judgment beyond a purely mechanical process; novelty is not required.
• Fair Dealing (s.29): Dealing may be fair depending on a six-factor analysis (purpose, character, amount, nature, alternatives, effect).
• Authorization: Providing equipment/access does not equal authorization without control, knowledge, or encouragement of infringement.

Facts (Timeline)

Arguments

Judgment

Appeal allowed. The Supreme Court of Canada upheld the Law Society’s practices and overturned the Court of Appeal. The library’s dealings were fair under s.29. The presence of self-service copiers and posted notices did not prove authorization of infringement.

• Publishers’ materials were original works under the skill-and-judgment test.
• Fair dealing requires a balanced, multi-factor approach, not a strict percentage rule.

Ratio (Core Principle)

A dealing is fair when assessed holistically: purpose, character, amount, nature, alternatives, effect. Originality means skill and judgment beyond the mechanical.

Why It Matters

• Sets the Canadian originality test used widely in courts and academia.
• Clarifies that libraries and research spaces can support copying for lawful purposes.
• Guides policy on access to knowledge and fair dealing in education and practice.

Key Takeaways

Mnemonic + 3-Step Hook

Mnemonic: “Fair Skills Guide” — Fair (six factors), Skills (originality test), Guide (library practices).

1. Purpose First: Why was it copied?
2. Not Just Numbers: Look at context, not page counts.
3. Skill & Judgment: Originality is about human effort beyond mechanics.

IRAC Outline

Issue: Were the library’s dealings fair? Was there authorization? Are the works original?

Rule: s.29 fair dealing factors; originality = skill + judgment; authorization requires control/encouragement.

Application: Library supported research; notices warned users; staff didn’t control choices; works showed non-trivial editorial effort.

Conclusion: Dealings were fair; no authorization found; works are original.

Glossary

Fair Dealing

User right to use copyrighted content for certain purposes if the dealing is fair.

Authorization

Encouraging or controlling someone else’s infringement.

Originality

A work made with non-trivial skill and judgment, not mere copying.

FAQs

Related Cases