## Facts

- A provincial law society operated a major legal reference library providing access to non-circulating legal materials.
- The library offered a fee-based, staff-run custom photocopy service that supplied single copies of requested items (e.g., cases, headnotes, journal articles, excerpts) to authorized users, including by mail and fax.
- The library also maintained self-service photocopiers available to patrons for a fee.
- Legal publishers claimed copyright in various editorial and compilation materials (including headnotes, case summaries, and indexes) and alleged infringement by both the custom service and patrons’ self-copying.
- The publishers sought declarations of copyright ownership and an injunction barring reproductions of their works.
- The law society contended its practices were lawful and, in any event, qualified as fair dealing for research or private study under the Copyright Act.

## Issues

1. What standard determines whether a work is sufficiently “original” for copyright protection, and did copyright subsist in the publishers’ editorial materials and compilations?
2. Did the law society authorize infringement by providing self-service photocopiers and operating a custom photocopy service?
3. Did faxing a copy to an individual requester constitute communication “to the public” by telecommunication?
4. Were the copying practices fair dealing for “research” or “private study,” and what test governs fairness?

## Decision

- The Supreme Court allowed the law society’s appeal in substantial part and reversed key holdings that had favored the publishers.
- The Court adopted an originality standard requiring more than mere copying and involving the exercise of “skill and judgment.”
- The Court held the law society did not authorize infringement merely by supplying photocopiers or operating services capable of being used unlawfully, absent proof it sanctioned or encouraged infringement.
- The Court held fax transmissions of single copies to specific individuals were not communications “to the public.”
- The Court held the copying was for “research” and was fair dealing under a multi-factor fairness analysis; therefore, the law society’s practices did not infringe copyright on the established record.

## Legal Principles

- Copyright originality requires an exercise of “skill and judgment,” meaning intellectual effort that is not purely mechanical or trivial; “sweat of the brow” alone is insufficient.
- Editorial and reference features such as headnotes, case summaries, and index entries may be protected if they meet the “skill and judgment” standard.
- Authorization of infringement requires conduct showing the defendant sanctioned, approved, or countenanced infringing acts; providing neutral equipment or services capable of infringement is not enough.
- There is a presumption that patrons use provided copying equipment lawfully unless evidence rebuts it.
- Sending a single copy by fax to an identified requester is not communicating a work “to the public.”
- Fair dealing is a user right and must be interpreted broadly; “research” includes professional and institutional research, not only personal or academic inquiry.
- Fairness is assessed contextually using six factors: (1) purpose, (2) character, (3) amount, (4) alternatives, (5) nature of the work, and (6) effect on the work/market; copying an entire work can be fair depending on context.

## Conclusion

The Supreme Court set a “skill and judgment” threshold for originality, limited authorization liability for neutral copying tools absent encouragement of infringement, held one-to-one faxing was not a public communication, and confirmed that library copying tied to research requests can qualify as fair dealing under a flexible six-factor test.


CCH Can. Ltd. v. Law Soc’y of Upper Can., [2004] 1 S.C.R. 339 (Can. 2004)