File No.

33,888 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) BETWEEN: THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTER OF EDUCATION AND OTHERS* Appellants (Applicants on Judicial Review) - and THE CANADIAN COPYRIGHT LICENSING AGENCY Operating as "ACCESS COPYRIGHT" Respondent (Respondents on Judicial Review) - and THE CENTRE FOR INNOVATION LAW AND POLICY (CILP) FACULTY OF LAW UNIVERSITY OF TORONTO Proposed Intervener ______________________________________________________________________________ MEMORANDUM OF ARGUMENT OF THE PROPOSED INTERVENER THE CENTRE FOR INNOVATION LAW AND POLICY (CILP) Faculty of Law University of Toronto MOTION TO EXTEND THE TIME TO FILE FOR LEAVE TO INTERVENE AND FOR LEAVE TO INERVENE Pursuant to Rules 6, 47 and 55 of the Rules of the Supreme Court of Canada ______________________________________________________________________________

* The Province of British Columbia as represented by the Minister of Education; The Province of Manitoba as represented by the Minister of Education, Citizenship and Youth; The Province of New Brunswick as represented by the. Minister of Education; The Province of Newfoundland and Labrador as represented by the Minister of Education; The Northwest Territories as represented by the Minister of Education, Culture and Employment; The Province of Nova Scotia as represented by the Minister of Education; The Territory of Nunavut as represented by

the Minister of Education; The Province of Ontario as represented by the Minister of Education; The Province of Prince Edward Island as represented by the Minister of Education; The Province of Saskatchewan, as represented by the Minister of Education The Yukon Territory as represented by the Minister of Education; The Airy and Sabine District School Area Board; The Algoma District School Board; The Algonquin and Lakeshore Catholic District School Board; The Asquith-Garvey District School Area Board; The Atikokan Roman Catholic Separate School Board; The Avon Maitland District School Beard; The Bloorview MacMillan School Authority; The Bluewater District School Board; The Brant Haldimand Norfolk Catholic District School Board; The Bruce-Grey Catholic District School Board; The Campbell Children's School Authority; The Caramat District School Area Board; The Catholic District School Board of Eastern Ontario; The Collins District School Area Board; The Connell and Ponsford District School Area Board; The Conseil des coles catholiques du Centre-Est de l'Ontario; The Conseil des coles publiques de l'Est de l'Ontario; The Conseil des coles separees catholiques de Dubreuilville; The Conseil des coles separees catholiques de Foleyet; The Conseil scolaire de district catholiques Centre-Sud; The Conseil scolaire de district catholique de l'Estontarien; The Conseil scolaire de district catholique des Aurores bon~ales; The ConseiI scolaire de district catholique des Grandes Rivieres; The Conseil scolaire de district catholique du Nouvel-Ontario; The Conseil scolaire de district catholique Franco-Nord; The Conseil scolaire de district des coles catholiques de Sud-Ouest; The Conseil scolaire de district du Centre Sud-Ouest; The Conseil scolaire de district du Grand Nord de l'Ontario; The Conseil scolaire de district du NordEst de l'Ontario; The District School Board of Niagara; The District School Board Ontario North East; The Dufferin-Peel Catholic District School Board; The Durham Catholic District School Board; The Durham District School Board; The Foleyet District School Area Board; The Gogama District School Area Board; The Gogama Roman Catholic Separate School Board; The Grand Erie District School Board; The Greater Essex County District School Board; The Halton Catholic District School Board; The Halton District School Board; The HamiltonWentworth Catholic District School Board; The Hamilton-Wentworth District School Board; The Hastings & Prince Edward District School Board; The Hornepayne Roman Catholic Separate School Board; The Huron Perth Catholic District School Board; The Huron-Superior Catholic District School Board; The James Bay Lowlands Secondary School Board; The Kawartha Pine Ridge District School Board; The Keewatin-Patricia District School Board; The Kenora Catholic District School Board; The Lakehead District School Board; The Lambton Kent District School Board; The Limestone District School Board; The Missarenda District School Area Board; The Moose Factory Island District School Area Board; The Moosonee District School Area Board; The Moosonee Roman Catholic Separate School Board; The Murchison and Lyell District School Area Board; The Nakina District School Area Board; The Near North District School Board; The Niagara Catholic District School Board; The Niagara Peninsula Children's Centre School Authority; The Nipissing-Parry Sound Catholic District School Board; The Northeastern Catholic District School Board; The Northern District School Area Board; The Northwest Catholic District School Board; The Ottawa Children's Treatment Centre School Authority; The Ottawa Carleton Catholic District School Board; The Ottawa~Carleton District School Board; The Parry Sound Roman Catholic Separate School Board; The Peel District School Board; The Peterborough Victoria Northumberland and Clarington Catholic District School Board; The Rainbow District School Board; The Rainy River District School Board; The Red Lake Area Combined Roman Catholic Separate School Board; The Renfrew County Catholic District School Board; The Renfrew County District School

Board; The Simcoe County District School Board; The Simcoe Muskoka Catholic District School Board; The St Clair Catholic District School Board; The Sudbury Catholic District School Board; The Superior North Catholic District School Board; The Superior-Greenstone District School Board; The Thames Valley District School Board; The Thunder Bay Catholic District School Board; The Toronto Catholic District School Board; The Toronto District School Board; The Trillium Lakelands District School Board; The Upper Canada District School Board; The Upper Grand District School Board; The Upsala District School Area Board; The Waterloo Catholic District School Board; The Waterloo Region District School Board; The Wellington Catholic District School Board; The Windsor~Essex Catholic District School Board; The York Catholic District School Board; and The York Region District School Board. Original To: The Registrar Supreme Court of Canada Wellington St., Ottawa, Canada And to: Ogilvy, Renault S.E.N.C.R.L., s.r.l. Suite 2500 1 Place Ville Marie Montral, Quebec H3B 1R1 Telephone: 514-847-4747 Fax: 514-286-5474 Solicitors for the Respondent c/o Sally Gomery Norton Rose OR LLP 1500-45 O'Connor Street Ottawa, Ontario K1P 1A4 Telephone: (613) 780-8604 FAX: (613) 230-5459 E-mail: sally.gomery@nortonrose.com J. Aidan O'Neill, Fasken, Martineau LLP Suite 1300 55 Metcalfe Street Ottawa, ON K1P 6L5 613-236-3882 613-230-6423 (fax) Solicitors for the Applicants, and on behalf of Ms. Wanda Noel, co-counsel for the Appellants

And Courtesy Copies To Other Proposed Interveners:

ASSOCIATION OF UNIVERSITIES AND COLLEGES OF CANADA (AUCC) and ASSOCIATION OF CANADIAN COMMUNITY COLLEGES (ACCC) c/o Marcus Klee Glen A. Bloom Patricia Wilson Solicitors for the Moving Parties, AUCC and ACCC Osler Hoskin & Harcourt LLP 340 Albert Street, Suite 1900 Ottawa, ON KIR 7Y6 Tel: (613) 235-7234 Fax: (613) 235-2867 Email: mklee@osler.com Tel: (613) 787-1009 Fax: (613) 235-2867 Email: pwilson@osler.com

THE CANADIAN ASSOCIATION OF UNIVERSITY TEACHERS AND THE CANADIAN FEDERATION OF STUDENTS Torys LLP 79 Wellington St. W., Suite 3000 Box 270, TD Centre Toronto, Ontario M5K 1 N2 Canada Fax: 416.865.7380 Wendy Matheson Tel: 416.865.8133 Email: wmatheson@torys.com Andrew Bernstein Tel: 416.865.7678 EmaiI: abernstein@torys.com c/o Osler Hoskin & Harcourt LLP Suite 1900 3"40 Albert Street Ottawa ON KIR 7Y6 Fax: 613.235.2867 Patricia Wilson 613.787.1009 Email: pwilson@osIer.com Agent for the Moving Party, Canadian Association of University Teachers and Canadian Federation of Students CANADIAN AUTHORS ASSOCIATION et al, Hebb & Sheffer (in association) Barristers & Solicitors l535A Queen Street West Toronto, ON M6R lA7 Marian Hebb LSUC#: 17788D Warren Sheffer LSUC#: 46093F Tel: 416-556-8187 Fax: 866-400-3215 Stockwoods LLP 77 King Street West, Suite 4130 Toronto, ON M5K IHI Brendan van Niejenhuis LSUC#: 46752J Tel: 416-593-7200 Fax: 416-593-9345

Solicitors for the Applicants Michael Sobkin Barrister & Solicitor 90 Boulevard de Lucerne Gatineau, Quebec J9H 7K8 Tel: 819-778-7794 Fax: 819-778-1740 E-mail: msobkin@sympatico.ca Agent for the Applicants Canadian Publishes Council et al McCarthy Ttrault LLP Suite 5300, Toronto-Dominion Bank Tower Toronto, ON M5K 16 Barry B. Sookman Steven G. Mason Daniel G.C. Glover Tel: (416) 601-7949 Fax: (416) 868w0673 E-mail: bsookman@mccarthy.ca Solicitors for the Proposed Interveners Canadian Publishers' Council, the Association of Canadian Publishers, and the Canadian Educational Resources Council c/o Cavanagh Williams Conway Baxter LLP Suite 401, 1111 Prince of Wales Drive Ottawa, ON K2C 31'2 Colin S. Baxter Tel: (613) 780-2011 Fax: (613) 569-8668 Ottawa Agent for the Proposed Interveners

CMRRA-SODRAC INC. Casey M. Chisick (416) 869-5403 Timothy Pinos (416) 869-5784 Jason Beitchman (416) 860-2988 Cassels Brock & Blackwell LLP Scotia Plaza, Suite 2100 40 King Street West Toronto, ON M5H 3C2 Telephone: (416) 869-5300 Facsimile: (416) 644-9326 c/o Ottawa Agent: Eugene Meehan Q.C. Jeffrey Beedell McMillan LLP 50 OConnor Street Suite 300 Ottawa, Ontario,K1P 6L2 Telephone: (613) 232-7171 Facsimile: (613) 231-3191 Agent for the Proposed Intervener

CMRRA-SODRAC Inc.

Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), University of Ottawa, Faculty of Law 57 Louis Pasteur St. Ottawa, Ontario K1N 6N5 c/o David Fewer Telephone: (613)562-5800 (ext.2558) Fax: (613)562-5417 E-mail: dfewer@uottawa.ca

I. FACTS A. 1. Overview

This is a motion by the Centre for Innovation Law and Policy at the Faculty of Law,

University of Toronto ("CILP"): a. to extend the time, pursuant to Rule 6 of the Rules of the Supreme of Canada, for CILP to file serve and file a motion for leave to intervene in this appeal; and, b. for leave to intervene in this appeal and to file a factum not to exceed 20 pages and to present oral argument at the hearing of the appeal not to exceed 15 minutes. 2. As is further explained below, the extension of time is sought mainly on the basis that

CILP had assumed that the proposed academic interveners would address all the essential aspects of fair dealing, and would present the various public interest perspectives from within the academic and user community that are necessary to assist this Court in this extremely important appeal. However, having now examined the leave to intervene motion records, CILP has reluctantly concluded that the materials fail to raise certain essential arguments that should be before this Court, and raise other arguments and issues that are unnecessary. CILP has moved as quickly as it could under all the circumstances to bring this motion. 3. If permitted to intervene, CILP would endeavour to assist this Court by ensuring that all

necessary public interest arguments are made from both the perspective of actual researchers, teachers, scholars and students in the university community and users generally who are not otherwise adequately represented before this court. That said, although CILP is an internationally recognized research institute within the University of Toronto Faculty of Law, it does not necessarily represent or speak for or represent the University of Toronto or any of CILPs sponsors in any way. The history and experience of CILP are set forth in detail in Prof. Katzs affidavit. Katz. Katz Affidavit, paras. 11 19.

4.

The view of Prof. Katz and CILP on the importance and context of this appeal are set

forth in his affidavit. Put simply, he believes that this is clearly the most important copyright case for research, education and learning to ever face this Court, or any other highest court of any comparable jurisdiction. Katz Affidavit, paras. 7-10, 22. B. Why Permission Is Being Sought For An Extension Of Time To File This Motion To Intervene 5. Prof. Katz explains frankly why this motion to intervene is being filed after the deadline

of September 12, 2011 and why an extension of time is being sought. This is because: a. The three proposed interveners that were expected to be generally supportive of the Applicants (the proposed academic interveners) are the Canadian Association of University Teachers (CAUT) together with the Canadian Federation of Students (CFS), the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), and the Association of Universities and Colleges of Canada (AUCC) together with the Association of Community Colleges of Canada (ACCC). CILP had reason to believe that these proposed academic interveners would supplement the Applicants submissions with further crucial submissions based upon public interest concerns arising more generally and in the post-secondary education level in particular. In the view of Prof. Katz, the Appellants and proposed academic interveners submissions taken together fail to raise certain crucial public interest arguments with respect to fair dealing that are essential to assist this Court in this case. b. CILPs examination of the material filed by the proposed interveners on September 12, 2011, which lead it to the reluctant conclusion that the proposed interveners failed to make certain crucial points, and also raised some unnecessary and potentially time-consuming and distracting points, as further explained below; c. CILP, while anticipating the need for a possible intervention by it, was given reason to believe that AUCC, in particular, would adequately represent the interests of the university community;

d. CILP, unlike the other proposed academic interveners, does not have a structure or resources normally devoted to court intervention; and, e. Court interventions on behalf of research centres at the University of Toronto Faculty of Law are undertaken with the requisite combination of caution and collegiality, and require a process of appropriate peer review in order to verify the need for such intervention and to review the submissions. Accordingly, in this instance, CILP went through an extensive review process (established ad hoc under the circumstances) involving other Faculty members. All of this this has been very helpful but has taken some time, including extensive volunteer time by colleagues on the weekend of September 17th and 18th, 2011. Katz Affidavit, paras. 20 32. 6. These missing aspects from other submissions include: a. Whether the activities found by the Court below not to be fair dealing, i.e. the making of copies other than at the request of a student, or when a student is instructed to read the material, or for "instruction" are not and should not ipso facto be excluded from fair dealing for any of the specifically listed purposes in ss. 29 and 29.1 of the Copyright Act, or that, in the alternative, the mention of particular purposes in ss. 29 and 29.1 of the Copyright Act does not necessarily preclude recognition of other types of fair dealing in light of the historic development of fair dealing and the role of the judiciary in its evolution; b. Whether the meaning and scope of the terms research, private and study, as well as criticism and review, which were codified a century ago in the landmark UK Copyright Act, 1911 and are still at the heart of the Canadian legislation, must be interpreted flexibly as technology, education and communication evolve, and specifically what this means in 2011 and beyond for such essential activities as criticism, and whether private study is now limited to study by oneself; c. Whether in determining fairness, it may be necessary to consider the purpose of both the provider of copies and the user, and not simply one or the other; and,

d. Whether it is unnecessary to give any consideration in this appeal to the provisions of international treaties or the Charter of Rights and Freedoms. C. 7. More about CILP and its Perspective

CILP's mandate and its record of activity since its inception focus on research, teaching,

and academic outreach activity (through conferences, workshops, etc.) - all of which are aspects of what can considered to be "education", "teaching" and "learning". These are concepts that overlap and rapidly evolving in the digital and Internet age, and are at the heart of this appeal. Katz Affidavit, paras. 7, 12. 8. CILP hosted a conference in 2010 with international faculty on the Google Book Search

Project and the litigation surrounding it, in which fair use and fair dealing were central concerns. Katz Affidavit, para. 15. 9. CILP is very concerned from a practical standpoint that that the decision of the Copyright

Board, as upheld by the Federal Court of Appeal, will prejudice its own ability to conduct and foster its research and to engage in its overall scholarly and educational mandate. Moreover, unless overturned, it will quickly result in increased costs and less access to essential material, as well as extremely intrusive and onerous reporting requirements. Moreover, many academic authors associated with CILP have a very different perspective from that of other authors and publishers and the proposed academic interveners. While CILP believes that the issues in this appeal are very important in the K-12 milieu, they are especially important in the university context where research and particularly directed research become more and more important. Katz Affidavit, paras. 6, 7, 33 - 35, 37, 37 -38. 10. It is not enough for this Court to be told that research should not be construed

narrowly, should be given a large and liberal or robust interpretation. These points are obvious and were well established and clearly articulated by this Court's landmark decision in CCH v. LSUC Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 (CCH v. LSUC) seven years ago. Katz Affidavit, para. 32 CCH v. LSUC Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R.

339, 2004 SCC 13, para. 51, Tab 5C. 11. It is also unnecessary to consider arguments based upon the Charter or Charter values, as

the intervener CIPPIC proposes. The point that the Copyright Act should be interpreted consistently with the Charter is obvious. CILP will argue that academic freedom and guarantees for unhindered learning have been part and parcel of copyright law from its inception and that any correct interpretation of the fair dealing provisions of the Copyright Act will take these goals and freedom into account, without the need to consider the Charter. Katz affidavit, paras. 26, 32. 12. CILP further believes that there is no need for this Court to consider international treaty

texts, much less WTO jurisprudence, as urged by proposed interveners in support of the Respondent and by others in the SOCAN v. Bell Previews case (SCC No. 33,800, which is to be heard the day before this appeal). There is no ambiguity involved in this case that might require recourse to any treaty to resolve. In the context of this appeal, the three-step test and its own inherent ambiguity, that some interveners urge should effectively be incorporated into domestic copyright legislation is nothing more than a red herring. One plain fallacy of these concerted arguments is that, if they were correct, then one would assume that the USA would have long ago been adjudicated by the Dispute Settlement Body of the World Trade Organization to be in flagrant violation of its international obligations with respect to 107 of its Copyright Act, which, codified the fair use doctrine in 1976 and has explicitly permitted the making of copies for the purpose of teaching, including multiple copies for classroom use. However, no complaint has ever been filed against the USA in this respect. This line of argument would be a lengthy and unnecessary distraction in what already promises to be a very crowded two days of copyright appeals. Katz affidavit, para. 26 United States Copyright Act, 17 USC 107, Tab 5B. 13. It is apparent from the material filed in the SOCAN Previews case, from the record below

and from the submissions of several proposed interveners in this appeal that there is a concerted effort to effectively push back and undo the key findings in this Courts landmark decision in CCH v. LSUC. CILP strongly disagrees with this position. In CILPs view, CCH v. LSUC

needs to be reaffirmed and enshrined by clarifying that many of the practices and activities that are essential to the educational system in Canada, and particularly the post-secondary system, are already included within the legislation and the CCH v. LSUC ruling. Katz affidavit, para. 26, 31. 14. CILPs submission embracing the flexibility and inclusiveness of the current statutory

provisions as confirmed by CCH v. LSUC would be confirmed by a historical and comparative law analysis. For example, a leading American treatise author specifically and positively mentions the CCH v. LSUC decision at some length as confirming his view that the Canadian fair dealing law is the kissing cousin of American fair use law, based on their cognate common law origins and shared philosophy. He specifically refers to the Chief Justices comments on users rights and places her judgment in the continuity of the early common-law judges who created fair use. William F. Patry, 4 Patry on Copyright 10:2. Tab 5D. 15. If CILP is granted leave to intervene, it will be able to assist this Court by providing the

benefit of its experience based upon: a. A unique and different perspective from any of the parties and the other proposed interveners by focussing on post-secondary and, in particular, research, educational, and teaching concerns in the undergraduate, postgraduate and professional contexts; b. Its expertise in the historical and common law origins and comparative law aspects of fair dealing, tracing back to the Statute of Anne 1710, 8 Anne c.21; long title An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned; and, c. Its expertise and experience in issues relating to the Copyright Board, and its experience to date with "fair dealing" and related issues.

Katz Affidavit, paras. 5, 6, 37, 38 et passim. 16. CILP, if permitted to intervene, would take positions that are supportive of the result

sought by the appellants but for additional and very different and distinct reasons. CILP would provide this Court with an analysis that will help this Court not only to determine whether or not the Board and the Court below should be overruled but also to provide as much guidance as may be appropriate for the next phases of education, creativity, and innovation in the digital age. Such guidance is important because CCH v. LSUC was the only fair dealing case ever heard by this Court, and such cases are extremely rare in the highest courts of other Anglo-American jurisdictions. CCH v. LSUC confirmed and explained the meaning of terminology that was codified a century ago. There can be no doubt that technology, innovation and education evolve at a pace far faster than that to which the Copyright Board, the Courts, and Parliament will be able adapt. Canada needs further guidance that will stand the test of time on the meaning of the current law on fair dealing for the years ahead, as copyright law moves into issues involving the cloud and beyond. This case presents a potentially indispensable opportunity for this Court to provide such guidance. Narrow, cramped and rigid interpretations of users rights are not conducive to such an important achievement. Katz Affidavit, para. 6, 10, 23, 17, 34 - 36. 17. CILP believes that, given the infrequency of highest court rulings on fair dealing or fair

use in this country and other Anglo-American jurisdictions, and the inherent difficulty of legislating intellectual property laws that will address every issue that affects, or is affected by technology, innovation and education, it is important that this Court provide guidance, to the extent that is possible and appropriate, for the future. Katz Affidavit, para. 8.

II. STATEMENT OF QUESTIONS IN ISSUE 18. Should CILP be permitted an extension of time pursuant to Rule 6 of the Supreme Court

of Canada Rules to bring this motion for leave to intervene in this Appeal?

19.

If so, should CILP be granted leave to intervene in this appeal, and if so, on what terms?

III. ARGUMENT 20. Based upon the facts set forth above, CILP seeks this Courts permission for an extension of time in order to bring this motion for leave to intervene. CILP understands that such extensions are rarely granted. However, CILP submits that it had reason to believe that its intervention would not be necessary, but having determined otherwise after examining the submissions of the proposed academic interveners, it has moved as expeditiously as it could under the circumstances. CILP submits that it this extension of time will not prejudice or inconvenience any party or other proposed intervener and may permit CILP to thereupon, if granted leave, assist this Court with certain essential arguments that will not otherwise be made and to avoid certain arguments that would be unnecessary and distracting. Given the context, the circumstances, and the importance of this appeal, and the lack of necessary submissions before this Court, CILP believes that this is an extraordinary situation warranting this Courts discretion to permit the extension. Rules of the Supreme Court of Canada (SOR/2002-156), Rule 6, Tab 5A. Katz Affidavit, para. 20, 43, 46.

21. In order to be granted leave to intervene, CILP must show this Court that it can provide submissions that will be useful to the Court and different from those of the other parties. Rules of the Supreme Court of Canada (SOR/2002-156), Rule 55, Tab 5A. 22. As outlined above, CILP would, if leave to intervene is granted, assist this Court by: a. bringing to bear the perspective of an actual research institute at a research university focussed on intellectual property itself and how it relates to innovation and other objectives that lie at the heart of the Copyright Act; making essential submissions that are different than those of the Appellant or any of the other proposed academic interveners, including the academic interveners, because it will address arguments relating to fair dealing that neither the Appellants nor the proposed academic interveners have raised, but which are essential for this Courts consideration; and, assisting this Court in demonstrating why certain potentially time consuming arguments already raised by potential interveners are unnecessary,

b.

c.

23.

CILP's intervention would be in the public interest because it would be based upon a

point of view emanating from a recognized research institute devoted to intellectual property and innovation issues at a major university. CILP is dedicated to serving the post-secondary educational sector in particular and the Canadian public in general. CILPs intervention would also reflect the view of academics who engage in considerable publication but who choose not to be affiliates of Access Copyright. Katz Affidavit, paras. 30, 33, 37. 24. CILP would be affected and could indeed suffer prejudice if not granted leave to

intervene because an adverse ruling from this Court could directly impact on CILPs core activities by decreasing access to essential education and research material and driving up the cost of what remains. Katz Affidavit, paras. 6, 37 25. To summarize, if CILP is granted leave to intervene, it would make submissions on the

following aspects of fair dealing, which have not been and likely will not be raised by any other party or proposed intervener: a. That the activities found by the Court below not to be fair dealing, i.e. the making of copies other than at the request of a student, or when a student is instructed to read the material, or for "instruction" are not and should not ipso facto be excluded from fair dealing for any of the specifically listed purposes in ss. 29 and 29.1 of the Copyright Act, or that, in the alternative, the mention of particular purposes in ss. 29 and 29.1 of the Copyright Act does not necessarily preclude recognition of other types of fair dealing in light of the historic development of fair dealing and the role of the judiciary in its evolution; b. That the meaning and scope of the terms research, private and study, as well as criticism and review, which were codified a century ago in the landmark UK Copyright Act, 1911 and are still at the heart of the Canadian legislation, must be interpreted flexibly as technology, education and communication evolve, and specifically what this means in 2011 and beyond for such essential activities as criticism, and whether private study is now limited to study by oneself; c. That in determining fairness, it may be necessary to consider the purpose of both

the provider of copies and the user, and not simply one or the other; and d. That it is unnecessary to give any consideration in this appeal to the provisions of international treaties or the Charter of Rights and Freedoms.

IV. COSTS 26. CILP undertakes not to seek any costs and asks that no costs be awarded against it.

V. ORDER SOUGHT 27. CILP seeks an order permitting an extension of time to file this leave to intervene motion

and, if so, to be permitted, to be granted leave to intervene in this appeal and to submit a factum of not more than 20 pages and to present oral argument not to exceed 15 minutes. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 20TH day of September, 2011.

_____________________ Howard P. Knopf Macera & Jarzyna, LLP 1200 - 427 Laurier Ave. W., Ottawa, Canada K1R 7Y2 Phone: 613-238-8173 Fax: 613-235-2508 Counsel for CILP

VI. PART VI - TABLE OF AUTHORITIES Statutory Instruments 1. Rules of the Supreme Court of Canada (SOR/2002-156), Rules 6, 47, and 55. Tab 5A. United States Copyright Act, 17 USC 107, Tab 5B.

2.

Case Law 3. CCH v. LSUC Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, Tab 5C.

Academic Authorities

4.

William F. Patry, 4 Patry on Copyright, 10:2, Thomson Reuters, 2011. Tab 5D.

VII. AUTHORITIES 1. Rules of the Supreme Court of Canada (SOR/2002-156), Rules 6, 47, and 55.

************************************* EXTENSION OR ABRIDGMENT 6. (1) The Court, a judge or unless these Rules provide otherwise, the Registrar may, on motion or on their own initiative, extend or abridge a period provided for by these Rules. (2) The affidavit in support of a motion for an extension or abridgement of time shall set out the reason for the delay or urgency, as the case may be. PROROGATION OU ABRGEMENT 6. (1) La Cour, un juge ou, sauf disposition contraire des prsentes rgles, le registraire peut, sur requte ou de sa propre initiative, proroger ou abrger tout dlai fix par les prsentes rgles. (2) Laffidavit lappui de la requte en prorogation ou en abrgement doit exposer les motifs du retard ou de lurgence, selon le cas. *************************

47. (1) Unless otherwise provided in these Rules, all motions shall be made before a judge or the Registrar and consist of the following documents, in the following order: (a) a notice of motion in accordance with Form 47; (b) any affidavit necessary to substantiate any fact that is not a matter of record in the Court; (c) if considered necessary by the applicant, a memorandum of argument in accordance with paragraph 25(1)(f), with any modifications that the circumstances require; (d) the documents that the applicant intends to rely on, in chronological order, in accordance with subrule 25(3); and (e) a draft of the order sought, including costs. (1.1) An originating motion shall include, after the notice of motion, (a) a certificate in Form 25B that states

(i) whether there is a sealing or confidentiality order in effect in the file from a lower court or the Court and whether any document filed includes information that is subject to a sealing or confidentiality order or that is classified as confidential by legislation, (ii) whether there is, pursuant to an order or legislation, a ban on the publication of evidence or the names or identity of a party or witness and whether any document filed includes information that is subject to that ban, and (iii) whether there is, pursuant to legislation, information that is subject to limitations on public access and whether any document filed includes information that is subject to those limitations; (b) a copy of any order referred to in subparagraph (a)(i) and (ii) or of the provision of the applicable legislation mentioned in subparagraphs (a)(i) to (iii); and (c) if a judges previous involvement or connection with the case may result in it being inappropriate for that judge to take part in the adjudication on the proceedings in the Court, a certificate in Form 25C setting out the issues. (2) Parts I to V of the memorandum of argument shall not exceed 10 pages. (3) There shall be no oral argument on the motion unless a judge or the Registrar otherwise orders.

SOR/2006-203, s. 22; SOR/2011-74, s. 25.

47. (1) Sauf disposition contraire des prsentes rgles, toute requte est prsente un juge ou au registraire et comporte dans lordre suivant : a) un avis de requte conforme au formulaire 47; b) tout affidavit ncessaire pour attester un fait dont la preuve nest pas au dossier de la Cour; c) si le requrant le considre ncessaire, un mmoire conforme lalina 25(1)f), avec les adaptations ncessaires; d) les documents que compte invoquer le requrant, par ordre chronologique, compte tenu du paragraphe 25(3); e) une bauche de lordonnance demande, notamment quant aux dpens. (1.1) La requte introductive dinstance comporte, la suite de lavis de requte : a) une attestation conforme au formulaire 25B indiquant :

(i) si une ordonnance de mise sous scells ou de confidentialit rendue par un tribunal dinstance infrieure ou par la Cour est en vigueur dans le dossier et si un document dpos contient des renseignements qui sont, soit viss par une ordonnance de mise sous scells ou de confidentialit, soit classs comme confidentiels aux termes de dispositions lgislatives, (ii) sil existe, en vertu dune ordonnance ou dune disposition lgislative, une obligation de nonpublication de la preuve ou du nom ou de lidentit dune partie ou dun tmoin et si un document dpos contient des renseignements viss par cette obligation, (iii) sil existe, en vertu dune disposition lgislative, une restriction qui limite laccs du public certains renseignements et si un document dpos contient des renseignements viss par cette restriction; b) une copie de toute ordonnance vise aux sous-alinas a)(i) et (ii) ou des dispositions lgislatives applicables vises aux sous-alinas a)(i) (iii); c) dans le cas o il pourrait ne pas tre indiqu que le juge prenne part la dcision de la Cour en raison de sa participation antrieure laffaire ou de lexistence dun lien entre lui et celle-ci, une attestation conforme au formulaire 25C nonant les questions souleves. (2) Les parties I V du mmoire de la requte comptent au plus dix pages. (3) Sauf ordonnance contraire dun juge ou du registraire, aucune plaidoirie orale nest prsente lgard de la requte.

DORS/2006-203, art. 22; DORS/2011-74, art. 25.

*********************** 55. Any person interested in an application for leave to appeal, an appeal or a reference may make a motion for intervention to a judge. 55. Toute personne ayant un intrt dans une demande dautorisation dappel, un appel ou un renvoi peut, par requte un juge, demander lautorisation dintervenir. *************************

2.

United States Copyright Act, 17 USC 107

in that work. A. 107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
40

The Visual Artists Rights Act of 1990 amended section 107 by adding the reference to section 106A. Pub. L. No. 101-650, 104 Stat. 5089, 5132. In 1992, section 107 was also amended to add the last sentence. Pub. L. No. 102-492, 106 Stat. 3145.

3.

CCH v. LSUC Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13

Source: http://scc.lexum.org/en/2004/2004scc13/2004scc13.html CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 Law Society of Upper Canada v. CCH Canadian Limited and between Law Society of Upper Canada v. Thomson Canada Limited c.o.b. as Carswell Thomson Professional Publishing Respondent/Appellant on cross-appeal and between Law Society of Upper Canada v. Appellant/Respondent on cross-appeal Appellant/Respondent on cross-appeal Respondent/Appellant on cross-appeal Appellant/Respondent on cross-appeal

Canada Law Book Inc. and

Respondent/Appellant on cross-appeal

Federation of Law Societies of Canada, Canadian Publishers Council and Association of Canadian Publishers, Socit qubcoise de gestion collective des droits de reproduction (COPIBEC) and Canadian Copyright Licensing Agency (Access Copyright) Indexed as: CCH Canadian Ltd. v. Law Society of Upper Canada Neutral citation: 2004 SCC 13. File No.: 29320.

Interveners

2003: November 10; 2004: March 4. Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ. on appeal from the federal court of appeal Copyright Infringement Photocopying Fax transmissions Law Society providing custom photocopy service and maintaining self-service photocopiers in library for use by patrons Legal publishers bringing copyright infringement actions against Law Society Whether publishers headnotes, case summary, topical index and compilation of reported judicial decisions original works covered by copyright If so, whether Law Society breached publishers copyright Whether Law Societys fax transmissions of publishers works constitute communications to the public Copyright Act, R.S.C. 1985, c. C-42, s. 3(1)(f). Copyright Infringement Exception Fair dealings Law Society providing custom photocopy service and maintaining self-service photocopiers in library for use by patrons Legal publishers bringing copyright infringement actions against Law Society Whether Law Societys dealings with publishers works fair dealings Copyright Act, R.S.C. 1985, c. C42, s. 29. Copyright Works in which copyright may subsist Meaning of original work Whether headnotes, case summary, topical index and compilation of reported judicial decisions original works covered by copyright Copyright Act, R.S.C. 1985, c. C-42, s. 2 every original literary, dramatic, musical and artistic work.

The appellant Law Society maintains and operates the Great Library at Osgoode Hall in Toronto, a reference and research library with one of the largest collections of legal materials in Canada. The Great Library provides a request-based photocopy service for Law Society members, the judiciary and other authorized researchers. Under this custom photocopy service, legal materials are reproduced by Great Library staff and delivered in person, by mail or by facsimile transmission to requesters. The Law Society also maintains self-service photocopiers in the Great Library for use by its patrons. In 1993, the respondent publishers commenced copyright infringement actions against the Law Society, seeking a declaration of subsistence and ownership of copyright in specific works and a declaration that the Law Society had infringed copyright when the Great Library reproduced a copy of each of the works. The publishers also sought a permanent injunction prohibiting the Law Society from reproducing these works as well as any other works that they published. The Law Society denied liability and counterclaimed for a declaration that copyright is not infringed when a single copy of a reported decision, case summary, statute, regulation or a limited selection of text from a treatise is made by the Great Library staff, or one of its patrons on a self-service copier, for the purpose of research. The Federal Court, Trial Division allowed the publishers action in part, finding that the Law Society had infringed copyright in certain works; it dismissed the Law Societys counterclaim. The

Federal Court of Appeal allowed the publishers appeal in part, holding that all of the works were original and therefore covered by copyright. It dismissed the Law Societys cross-appeal.

Held: The appeal should be allowed and the cross-appeal dismissed. The Law Society does not infringe copyright when a single copy of a reported decision, case summary, statute, regulation or limited selection of text from a treatise is made by the Great Library in accordance with its access policy. Moreover, the Law Society does not authorize copyright infringement by maintaining a photocopier in the Great Library and posting a notice warning that it will not be responsible for any copies made in infringement of copyright. The headnotes, case summary, topical index and compilation of reported judicial decisions are all original works in which copyright subsists. An original work under the Copyright Act is one that originates from an author and is not copied from another work. In addition, an original work must be the product of an authors exercise of skill and judgment. The 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. While creative works will by definition be original and covered by copyright, creativity is not required to make a work original. This conclusion is supported by the plain meaning of original, the history of copyright law, recent jurisprudence, the purpose of the Copyright Act and the fact that this constitutes a workable yet fair standard. While the reported judicial decisions, when properly understood as a compilation of the headnote and the accompanying edited judicial reasons, are original works covered by copyright, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright.

Under s. 29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright. Research must be given a large and liberal interpretation in order to ensure that users rights are not unduly constrained, and is not limited to non-commercial or private contexts. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29. The following factors help determine whether a dealing is fair: the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing, and the effect of the dealing on the work. Here, the Law Societys 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 Law Society did not authorize copyright infringement by providing self service photocopiers for use by its patrons in the Great Library. While authorization can be inferred from acts that are less than direct and positive, a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person

who authorizes an activity does so only so far as it is in accordance with the law. This presumption may be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement. Here, there was no evidence that the copiers had been used in a manner that was not consistent with copyright law. Moreover, the Law Societys posting of a notice warning that it will not be responsible for any copies made in infringement of copyright does not constitute an express acknowledgement that the copiers will be used in an illegal manner. Finally, even if there were evidence of the copiers having been used to infringe copyright, the Law Society lacks sufficient control over the Great Librarys patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement. There was no secondary infringement by the Law Society. The Law Societys fax transmissions of copies of the respondent publishers works to lawyers in Ontario were not communications to the public. While a series of repeated fax transmissions of the same work to numerous different recipients might constitute communication to the public in infringement of copyright, there was no evidence of this type of transmission having occurred in this case. Nor did the Law Society infringe copyright by selling copies of the publishers works. Absent primary infringement, there can be no secondary infringement. Finally, while it is not necessary to decide the point, the Great Library qualifies for the library exemption. Cases Cited

Applied: Muzak Corp. v. Composers, Authors and Publishers Association of Canada, Ltd., [1953] 2 S.C.R. 182; De Tervagne v. Belil (Town), [1993] 3 F.C. 227; not followed: Moorhouse v. University of New South Wales, [1976] R.P.C. 151; referred to: Moreau v. St. Vincent, [1950] Ex. C.R. 198; Goldner v. Canadian Broadcasting Corp. (1972), 7 C.P.R. (2d) 158; Grignon v. Roussel (1991), 38 C.P.R. (3d) 4; Thberge v. Galerie dArt du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34; Bishop v. Stevens, [1990] 2 S.C.R. 467; Compo Co. v. Blue Crest Music Inc., [1980] 1 S.C.R. 357; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; University of London Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch. 601; U & R Tax Services Ltd. v. H & R Block Canada Inc. (1995), 62 C.P.R. (3d) 257; Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991); Tele-Direct (Publications) Inc. v. American Business Information, Inc., [1998] 2 F.C. 22; dutile Inc. v. Automobile Protection Assn., [2000] 4 F.C. 195; Slumber-Magic Adjustable Bed Co. v. SleepKing Adjustable Bed Co. (1984), 3 C.P.R. (3d) 81; Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., [1964] 1 All E.R. 465; Composers, Authors and Publishers Association of Canada Ltd. v. CTV Television Network Ltd., [1968] S.C.R. 676; CBS Inc. v. Ames Records & Tapes Ltd., [1981] 2 All E.R. 812; Hubbard v. Vosper, [1972] 1 All E.R. 1023; Associated Newspapers Group plc v. News Group Newspapers Ltd., [1986] R.P.C. 515; Sillitoe v. McGrawHill Book Co. (U.K.), [1983] F.S.R. 545; Beloff v. Pressdram Ltd., [1973] 1 All E.R. 241; Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] F.S.R. 610. Statutes and Regulations Cited Berne Convention for the Protection of Literary and Artistic Works (1886).

Copyright Act, R.S.C. 1985, c. C-42, ss. 2 computer program [am. c. 10 (4th Supp.), s. 1(3)], dramatic work [am. 1993, c. 44, s. 53(2)], every original literary, dramatic, musical and artistic work [idem], library, archive or museum [ad. 1997, c. 24, s. 1(5)], work, 2.1 [ad. 1993, c. 44, s. 54], Part I, 3(1) [am. 1988, c. 65, s. 62; am. 1993, c. 44, s. 55; am. 1997, c. 24, s. 3], 5(1) [repl. 1994, c. 47, s. 57(1); am. 1997, c. 24, s. 5], Part III, 27 [repl. 1997, c. 24, s. 15], 29 [idem, s. 18(1)], 29.1, 29.2, 30, 30.2 [ad. idem], Part IV, 34(1) [repl. idem, s. 20(1)]. Authors Cited Concise Oxford Dictionary of Current English, 7th ed. Oxford: Oxford University Press, 1982, original. Craig, Carys J. Locke, Labour and Limiting the Authors Right: A Warning against a Lockean Approach to Copyright Law (2002), 28 Queens L.J. 1. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Gervais, Daniel J. Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law (2002), 49 J. Copyright Socy U.S.A. 949. Handa, Sunny. Copyright Law in Canada. Markham, Ont.: Butterworths, 2002. Hitchcock, P. D. Home Copying and Authorization (1983), 67 C.P.R. (2d) 17. Kierans, Patrick E., and Rowena Borenstein. Injunctions Interlocutory and Permanent. In Ronald E. Dimock, ed., Intellectual Property Disputes: Resolutions & Remedies, vol. 2. Toronto: Thomson/Carswell, 2002, 15-1. Litman, Jessica. The Public Domain (1990), 39 Emory L.J. 965. McKeown, John S. Fox Canadian Law of Copyright and Industrial Designs, 4th ed. Toronto: Thomson/Carswell, 2003 (loose-leaf). New Shorter Oxford English Dictionary on Historical Principles, vol. 1. Oxford: Clarendon Press, 1993, countenance. Ricketson, Sam. The Berne Convention for the Protection of Literary and Artistic Works: 18861986. London: Kluwer, 1987. Vaver, David. Copyright Law. Toronto: Irwin Law, 2000.

APPEAL and CROSS-APPEAL from a judgment of the Federal Court of Appeal, [2002] 4 F.C. 213, 212 D.L.R. (4th) 385, 289 N.R. 1, 18 C.P.R. (4th) 161, [2002] F.C.J. No. 690 (QL), 2002 FCA 187, reversing in part a judgment of the Trial Division, [2000] 2 F.C. 451, 169 F.T.R. 1,

179 D.L.R. (4th) 609, 2 C.P.R. (4th) 129, 72 C.R.R. (2d) 139, [1999] F.C.J. No. 1647 (QL). Appeal allowed and cross-appeal dismissed. R. Scott Joliffe, L. A. Kelly Gill and Kevin J. Sartorio, for the appellant/respondent on crossappeal. Roger T. Hughes, Q.C., and Glen A. Bloom, for the respondents/appellants on cross-appeal. Kevin L. LaRoche, for the intervener the Federation of Law Societies of Canada. Thomas G. Heintzman, Q.C., and Barry B. Sookman, for the interveners the Canadian Publishers Council and the Association of Canadian Publishers. Claude Brunet, Benot Clermont and Madeleine Lamothe-Samson, for the interveners Socit qubcoise de gestion collective des droits de reproduction (COPIBEC) and the Canadian Copyright Licensing Agency (Access Copyright). The judgment of the Court was delivered by THE CHIEF JUSTICE Introduction The Issues To Be Determined

I.

1 The appellant, the Law Society of Upper Canada, is a statutory non-profit corporation that has regulated the legal profession in Ontario since 1822. Since 1845, the Law Society has maintained and operated the Great Library at Osgoode Hall in Toronto, a reference and research library with one of the largest collections of legal materials in Canada. The Great Library provides a request-based photocopy service (the custom photocopy service) for Law Society members, the judiciary and other authorized researchers. Under the custom photocopy service, legal materials are reproduced by Great Library staff and delivered in person, by mail or by facsimile transmission to requesters. The Law Society also maintains self-service photocopiers in the Great Library for use by its patrons. 2 The respondents, CCH Canadian Ltd., Thomson Canada Ltd. and Canada Law Book Inc., publish law reports and other legal materials. In 1993, the respondent publishers commenced copyright infringement actions against the Law Society, seeking a declaration of subsistence and ownership of copyright in eleven specific works and a declaration that the Law Society had infringed copyright when the Great Library reproduced a copy of each of the works. The publishers also sought a permanent injunction prohibiting the Law Society from reproducing these eleven works as well as any other works that they published.

3 The Law Society denied liability and counterclaimed for a declaration that copyright is not infringed when a single copy of a reported decision, case summary, statute,

regulation or a limited selection of text from a treatise is made by the Great Library staff or one of its patrons on a self-service photocopier for the purpose of research. 4 The key question that must be answered in this appeal is whether the Law Society has breached copyright by either (1) providing the custom photocopy service in which single copies of the publishers works are reproduced and sent to patrons upon their request or by (2) maintaining self-service photocopiers and copies of the publishers works in the Great Library for use by its patrons. To answer this question, the Court must address the following sub-issues: (1) Are the publishers materials original works protected by copyright? (2) Did the Great Library authorize copyright infringement by maintaining self-service photocopiers and copies of the publishers works for its patrons use? (3) Were the Law Societys dealings with the publishers works fair dealing[s] under s. 29 of the Copyright Act, R.S.C. 1985, c. C-42, as amended?

(4) Did Canada Law Book consent to have its works reproduced by the Great Library? 5 The publishers have filed a cross-appeal in which they submit that, in addition to infringing copyright by reproducing copies of their works, the Law Society infringed copyright both by faxing and by selling copies of the publishers copyrighted works through its custom photocopy service. The publishers also contend that the Great Library does not qualify for the library exemption under the Copyright Act and, finally, that they are entitled to an injunction to the extent that the Law Society has been found to infringe any one or more of their copyrighted works. The four sub-issues that the Court must address on this cross-appeal are: (1) Did the Law Societys fax transmissions of the publishers works constitute communications to the public within s. 3(1)(f) of the Copyright Act so as to constitute copyright infringement? (2) Did the Law Society infringe copyright by selling copies of the publishers works contrary to s. 27(2) of the Copyright Act? (3) Does the Law Society qualify for an exemption as a library, archive or museum under ss. 2 and 30.2(1) of the Copyright Act?

(4) To the extent that the Law Society has been found to infringe any one or more of the publishers copyrighted works, are the publishers entitled to a permanent injunction under s. 34(1) of the Copyright Act? 6 With respect to the main appeal, I conclude that the Law Society did not infringe copyright by providing single copies of the respondent publishers works to its members through the custom photocopy service. Although the works in question were original and thus

covered by copyright, the Law Societys dealings with the works were for the purpose of research and were fair dealings within s. 29 of the Copyright Act. I also find that the Law Society did not authorize infringement by maintaining self-service photocopiers in the Great Library for use by its patrons. I would therefore allow the appeal. 7 On the cross-appeal, I conclude that there was no secondary infringement by the Law Society; the fax transmissions were not communications to the public and the Law Society did not sell copies of the publishers works. In light of my finding on appeal that the Law Societys dealings with the publishers works were fair, it is not necessary to decide whether the Great Library qualifies for the library exemption. This said, I would conclude that the Great Library does indeed qualify for this exemption. Finally, in light of my conclusion that there has been no copyright infringement, it is not necessary to issue an injunction in this case. I would dismiss the cross-appeal. (a) The Law

48 Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a users right. In order to maintain the proper balance between the rights of a copyright owner and users interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.

49 As an integral part of the scheme of copyright law, the s. 29 fair dealing exception is always available. Simply put, a library can always attempt to prove that its dealings with a copyrighted work are fair under s. 29 of the Copyright Act. It is only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Copyright Act to prove that it qualified for the library exemption. 50 In order to show that a dealing was fair under s. 29 of the Copyright Act, a defendant must prove: (1) that the dealing was for the purpose of either research or private study and (2) that it was fair. 51 The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. Research must be given a large and liberal interpretation in order to ensure that users rights are not unduly constrained. I agree with the Court of Appeal that research is not limited to noncommercial or private contexts. The Court of Appeal correctly noted, at para. 128, that

[r]esearch for the purpose of advising clients, giving opinions, arguing cases, preparing briefs and factums is nonetheless research. Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29 of the Copyright Act. 52 The Copyright Act does not define what will be fair; whether something is fair is a question of fact and depends on the facts of each case. See McKeown, supra, at p. 236. Lord Denning explained this eloquently in Hubbard v. Vosper, [1972] 1 All E.R. 1023 (C.A.), at p. 1027: It is impossible to define what is fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. 53 At the Court of Appeal, Linden J.A. acknowledged that there was no set test for fairness, but outlined a series of factors that could be considered to help assess whether a dealing is fair. Drawing on the decision in Hubbard, supra, as well as the doctrine of fair use in the United States, he proposed that the following factors be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases. (i) The Purpose of the Dealing

54 In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting: see ss. 29, 29.1 and 29.2 of the Copyright Act. As discussed, these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users rights. This said, courts should attempt to make an objective assessment of the user/defendants real purpose or motive in using the copyrighted work. See McKeown, supra, at p. 23-6. See also Associated Newspapers Group plc v. News Group Newspapers Ltd., [1986] R.P.C. 515 (Ch. D.). Moreover, as the Court of Appeal explained, some dealings, even if for an allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purposes. (ii) The Character of the Dealing

55 In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair. For example, in Sillitoe v. McGraw-Hill Book Co. (U.K.), [1983] F.S.R. 545 (Ch. D.), the importers and distributors of study notes that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism. The court reviewed the ways in which copied works were customarily dealt with in literary criticism textbooks to help it conclude that the study notes were not fair dealings for the purpose of criticism. (iii) The Amount of the Dealing 56 Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. As the passage from Hubbard indicates, the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique. (iv) Alternatives to the Dealing

57 Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. I agree with the Court of Appeal that it will also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose. For example, if a criticism would be equally effective if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness. (v) The Nature of the Work

58 The nature of the work in question should also be considered by courts assessing whether a dealing is fair. Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work one of the goals of copyright law. If,

however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair. See Beloff v. Pressdram Ltd., [1973] 1 All E.R. 241 (Ch. D.), at p. 264. (vi) Effect of the Dealing on the Work

59 Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair. See, for example, Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] F.S.R. 610 (C.A.), per Robert Walker L.J. 60 To conclude, the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.

4.

William F. Patry, 4 Patry on Copyright, 10:2, Thomson Reuters, 2011.

Patry on Copyright [highlight and emphasis added] Database updated August 2011 William F. Patry Chapter 10. The Fair Use Defense II. Origins and Purpose of Fair Use References 10:2. Generally West's Key Number Digest West's Key Number Digest, Copyrights and Intellectual Property 53.2 Unlike Athena, the doctrine of fair use did not spring forth fully formed. Yet, while the scope of its application and the contours of its features were filled in gradually, still the basic foundation and rationale were established remarkably early. In the century from 1740 to 1839, English judges developed a relatively coherent set of principles governing the unconsented-to use of a first author's work by a subsequent author or critic. By 1841, U.S. Supreme Court Justice Joseph Story, sitting as a circuit justice in Folsom v. Marsh,[1] was able to gather these principles together into a formulation of fair use that served as the bedrock for future decision making and legislation on the subject. So well did Justice Story synthesize the doctrine that later English courts looked to his expression of the concept for guidance,[2] while Congress, in the 1976 Copyright Act, distilled his principles into the four fair use factors enumerated in Section 107.[3] English judges were quite explicit in articulating their rationale for permitting the unconsented-to use of one author's work by a subsequent author. That rationale, found initially in the fair abridgment context,[4] was that the second author, through a good faith productive use of the first author's work, had, in effect, created a new work that would itself benefit the public.[5] Since the 1710 English Statute of Anne gave no guidance on the standards to be applied in determining infringement, the English courts looked to the statute's purpose of encouraging authors to Compose and Write Useful Books.[6] Fair use was believed to be necessary to fulfill that purpose. English judges accordingly acted boldly to achieve that purpose. [6.10] Operating under a similar lack of statutory guidance and a similar (but constitutional) goal of promoting the Progress of Science, U.S. courts incorporated and further developed the fair use

doctrine to ensure that subsequent authors and the public may build upon the work of earlier authors.[7] Fair use recognizes that much intellectual activity is based upon the efforts of others, and frequently involves referential activity.[8] As Professor Zechariah Chafee noted: The world goes ahead because each of us builds on the work of our predecessors. A dwarf standing on the shoulders of a giant can see farther than the giant himself. Progress would be stifled if the author had a complete monopoly of everything in his book.[9] Similarly, the Supreme Court observed in Campbell v. Acuff-Rose Music, Inc.,[10] fair use permits [and requires] courts to avoid rigid application of the copyright statute, when, on occasion, it would stifle the very creativity which that law is designed to foster.[11] Fair use is designed to perform the vital constitutional goal of ensuring that the balance between encouraging authors to create through the grant of a limited monopoly and the need to permit reasonable, unconsented-to and uncompensated uses by second authors and the public is not upset by overbroad assertion of rights.[12] Fair use should not, as Judge Pierre Leval put it, be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design.[13] Similarly, in CCH Canadian Ltd. v. Law Society of Upper Canada,[14] involving the Great Library's fulfillment of request-based reproductions, the Canadian Supreme Court wellarticulated that exceptions to copyright (in its case fair dealing, a kissing cousin of fair use) are a part of the system, not a derogation from it. In interpreting the Canadian fair dealing provision, the Court wrote that they must not be interpreted restrictively, but rather accorded large and liberal interpretation so that users' rights are not impeded. The concept of users' rights runs into the conventional wisdom that fair use and fair dealing are affirmative defenses.[15] Section 107 is phrased as an affirmative defense; courts under the 1909 Act held fair use is an affirmative defense, and the Supreme Court twice held it is under the 1976 Act (Harper & Row; Campbell), but all this means is that an evidentiary burden has been assigned to one party; that burden is slight, as it is for example in rebutting the presumption provided to certificates of registration under Section 410(c). The more important point is how the defense is evaluated once raised. Chief Justice MacLachlin put this point well in CCH: Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing defence will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. As Professor Vaver, has explained, User rights are not just loopholes, Both owners and user rights should therefore be given the fair and balanced reading that befits remedial legislation. What Judge Leval, Chief Judge MacLachlin, and the early common-law judges who created fair use understood is that copyright is a system; it is not a thing, it is not a property right. Copyright is a means to an end, the end being to encourage learning. All learning is a community experience, and one that takes place over generations, over decades, over centuries. For any

system to function, it must take into account, in a meaningful, liberal way, the manner in which humanity proceeds. In the case of copyright, this means that fair use must be viewed as an integral part of the system, and not a begrudging exception to a Hobbesian state of nature where ruthless enforcement of exclusive rights as private property is the ideal.

[FN1] 9 F. Cas. 342, No. 4901 (C.C.D. Mass. 1841). [FN2] Scott v. Stanford, L.R. 3 Eq. 718, 722 (1867). Regrettably, the British abandoned fair use in 1911 in favor of narrower, statutory fair dealing provisions. This step was criticized by the great Mr. Justice Hugh Laddie in Copyright: Overstrength, Over-Regulated, Over-Rated, 18 E.I.P.R. 253, 258259 (1996). [FN3] See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994); Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 1112 (1990). See also Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. (forthcoming 2009). [FN4] Gyles v. Wilcox, 2 Atk. 141 (1740). See also discussion of fair abridgment in Campbell, 510 U.S. at 576; Twin Peaks Productions, Inc. v. Publications Intern., Ltd., 996 F.2d 1366 (2d Cir. 1993) (citing the author's fair use treatise). See also Vaver, Abridgements and Abstracts: Copyright Implications 17 E.I.P.R. 225 (1995). [FN5] Gyles, 2 Atk. 141. See also Cary v. Kearsley, 4 Esp. 168, 170171 (1803). [FN6] See 1:6. [FN6.10] See in particular Hawkesworth v. Newbery, Lofft 775, 775776 (1774), which is a description (by the reporter, Lofft) of an oral opinion: The Lord Chancellor was of opinion that this abridgement of the work was not any violation of the author's property whereon to ground an injunction. That to constitute a true and proper abridgement of a work the whole must be preserved in its sense: And then the act of abridgement is an act of understanding, employed in a carrying a large work into a smaller corpus, and rendering it less expensive, and more convenient both to the time and use of the reader. Which made an abridgement in the nature of a new and meritorious work. That this had been done by Mr. Newbery, whose edition might be read in a fourth of the time, and all the substance preserved, and conveyed in language as good or better than the original, and in a more agreeable and useful manner. That [the Lord Chancellor] had consulted Mr. Justice Blackstone whose knowledge and skill in the profession was universally known, and who as an author had done honour to his country. That they had spent some hours together, and were agreed that an abridgement, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which

rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgement of Mr. Newberry's falls within these reasons and descriptions. [FN7] Campbell, 510 U.S. at 575 (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S. Ct. 1750, 109 L. Ed. 2d 184 (1990)). [FN8] See Leval, 103 Harv. L. Rev. at 1108. [FN9] The origins of the quoted passage, and its phrasing, have been the subject of much scholarly interest, regardless of one's height. The most extensive look at the quote is by Robert K. Merton in a 1965 book called, appropriately, On the Shoulders of Giants. A 1991 reprint, called the Post-Italianate Edition, has a Shandean Postscript and a foreword by Umberto Eco. Many associate the saying with Isaac Newton: If I have seen further it is by standing on ye sholders of Giants. Newton's remark first appeared in a February 5, 1676, letter to Robert Hooke (16351703), and some have interpreted it as a sarcastic remark given Hooke's slight build and a severely stooped nature. Hooke was not short, however, the two did apparently have a falling out in 1672 over a presentation Newton made to the Royal Society showing that prisms split white light rather than modifying it, which Hooke criticized. See www.en.wikipedia.org/wiki/Robert_Hooke. Hooke was an astonishing polymath: a scientist, inventor, and famous architect. See Robert Hooke and the English Renaissance (Chapman and Kent eds. 2005); Chapman, England's Leonardo: Robert Hooke and the Seventeenth Century Scientific Revolution (2004); Bennett et al., London's Leonardo: The Life of Robert Hooke (2003). Both Newton and Hooke appear in Neal Stephenson's trilogy of novels The Baroque Cycle (20032004). Merton ascribes to Robert Burton's epic masterpiece The Anatomy of Melancholy the attribution to Didacus Stella, but my edition of Burton (the 1977 Jackson edition) has Burton tracing it to Plato's Banquet (p. 437 n.4). Wikipedia, though, has the most straightforward explanation: The metaphor of dwarfs standing on the shoulders of giants (Latin: Pigmaei gigantum humeris impositi plusquam ipsi gigantes vident) is first recorded in the 12th century, attributed to Bernard of Chartres. It is often mistakenly attributed to Isaac Newton. The attribution to Bernard is due to John of Salisbury, who writes in 1159 in his Metalogicon: Bernard of Chartres used to say that we are like dwarfs on the shoulders of giants, so that we can see more than they, and things at a greater distance, not by virtue of any sharpness of sight on our part, or any physical distinction, but because we are carried high and raised up by their giant size. Didacus Stella took up the quote in the 16th century, and it became commonplace in the 17th century. Robert Burton (15771640) in The Anatomy of Melancholy (162151) quotes Didacus Stella:

I say with Didacus Stella, a dwarf standing on the shoulders of a giant may see farther than a giant himself. Later editors of Burton's misattributed the quote to Lucan. While Burton had, correctly, Didacus Stella, in luc 10, tom. ii Didacus on the Gospel of Luke, chapter 10; volume 2, this became a reference to Lucan's Pharsalia 2.10, where nothing of the kind is found. Herbert, Jacula Prudentum, (1651): A dwarf on a giant's shoulders sees farther of the two. Isaac Newton famously remarked in a letter to Robert Hooke, dated 5 February 1676: If I have seen a little further it is by standing on the shoulders of Giants. The British Two Pound coin has the edge inscription STANDING ON THE SHOULDERS OF GIANTS in commemoration of Newton. Coleridge, The Friend (1828): The dwarf sees farther than the giant, when he has the giant's shoulder to mount on The 13th century stained glass of the south transept of the Chartres Cathedral may also be influenced by the metaphor. The tall windows under the Rose Window show four major Old Testament prophets Isaiah, Jeremiah, Ezekiel, and Daniel as gigantic figures, and the four New Testament evangelists Matthew, Mark, Luke, and John as sitting on their shoulders. The evangelists, though smaller, see more than the huge prophets (they saw the Messiah about whom the prophets spoke). The phrase also appears in the song King of Birds by the U.S. rock band R.E.M., which includes the lyric, standing on the shoulders of giants / leaves me cold. Google Scholar has adopted stand on the shoulders of giants as its motto. [FN10] 510 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). [FN11] 510 U.S. at 577, quoting Stewart 495 U.S. at 236. [FN12] Eldred v. Ashcroft, 537 U.S. 186, 219220, 123 S. Ct. 769, 154 L. Ed. 2d 683 (2003). [FN13] Leval, 103 Harv. L. Rev. at 1110. [FN14] [2004] 1 SCR 339. [FN15] See infra 10:9. Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. PATRYCOPY 10:2

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