Copyright Comparison Series - Part 3: Case Law

This is the Final part of our copyright Comparison looking at Rules and regulations in Canada and the United states. Make sure to check out parts 1 and 2:

Part 1 - Introduction and Derivative Works in Canada and the U.S.

Part 2 - Fair Dealing versus Fair Use

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Part 3: CASE LAW

CCH Canadian Ltd v Law Society of Upper Canada

In CCH, the Supreme Court of Canada (SCC) ruled that the Law Society of Upper Canada did not infringe copyright because its Great Library request-based reproduction services fell squarely within the allowances of the fair dealing doctrine. The Great Library provided lawyers and other authorized persons with copies of such works to assist them with advising clients, giving opinions, preparing legal documents and arguing cases.

The court held that Section 29 of the Copyright Act, alongside its fair dealing exception, “must not be interpreted restrictively.”[82] Further, the court noted that the research exception should be accorded a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained” and are “not limited to non-commercial or private contexts.”[83] The court’s liberal analysis of the enumerated factors, particularly the purposes of the dealing,  indicated the courts intention to align itself with the more flexible U.S. approach.[84]

Society of Composers, Authors and Music Publishers of Canada (SOCAN)

In SOCAN, the SCC unanimously ruled that a consumer who listened to a thirty second excerpt of a song online before deciding whether or not to purchase it amounted to a form of “research” covered under the fair dealing provisions of the Copyright Act.

The Supreme Court followed the approach taken by the court in CCH by giving a broad and liberal interpretation of the word “research,” noting that it could be interpreted to include research for both commercial and creative purposes:

Limiting research to creative purposes would also run counter to the ordinary meaning of "research," which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.[85]

The court further concluded that the ‘purposes test’ at the first stage of the fair dealing analysis has a low threshold:

In mandating a generous interpretation of the fair dealing purposes, including "research", the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.[86]

 Alberta (Education) v Canadian Copyright Licensing Agency[87]

In this case, the SCC ruled that photocopies of short excerpts from books made by teachers for distribution to students in elementary and secondary schools should not be subject to an additional tariff.

As in SOCAN, the court followed the two-stage analysis set out in CCH. At the first stage, the court found that the photocopying was done for the allowable purpose of “research or private study.” In doing so the court took a broad approach to determining the scope of the private study category, concluding:

With respect, the word "private" in "private study" should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers' instruction from the students' studying.[88]

The court not only included ‘instruction’ within the scope of research and private study, but also reframed private study as a form of personal study that could take place at any location, with or without an instructor. This approach added further flexibility to the interpretation of the enumerated categories within Section 29 of the Act.

It should also be noted that the court in this case considered the copying purposes of not only the actual copier, but the intended user as well. Although the teacher was technically making copies on behalf of the student, the court found that their purposes were inseparable, noting that “the teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.”[89]

This approach adds further flexibility to the fair dealing provision by enabling users to satisfy the first stage of the analysis by arguing that their copying is conducted on behalf of a permitted purpose of the recipient.[90]

FOr more information, or for help from CArson Law and our IP Division


[82] Teresa Scassa, “Information Law in the Platform Economy: Ownership, Control, and Rescue of Platform Data” in Derek McKee, Finn Makela & Teresa Scassa, eds, Law and the Sharing Economy: Regulating Online Market Platforms (Ottawa: UOP, 2018) 47 at para 48. [83] Supra, note 47 at para 51. [84] Supra, note 7 at 325. [85] Supra, note 47 at para 22. [86] Ibid., at para 22. [87] Alberta (Education) v. Canadian Copyright Licensing Agency, 2012 SCC 37 [Access Copyright]. [88] Supra, note 86 at para 27. [89] Ibid., at para 23. [90] However, the court cautioned that this interpretation “does not mean…that the copier [can] hide behind the shield of the user’s allowable purpose intended to engage in a separate purpose that is unfair, that separate purpose will also be relevant to the fairness analysis.” Ibid., at para 22.


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