BETWEEN:

AND:
Court File No, 29320
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
THE LAW SOCIETY OF UPPER CANADA
Appellant/Respondent on cross-appeal
(Respondent)
CCH CANADIAN LIMITED
Respondent/ ~ p p e l l a n t on cross-appeal
(Appellant)
AND BETWEEN:
AND:
THE LAW SOCIETY OF UPPER CANADA
Appellant/Respondent on cross-appeal
(Respom?cnt)
THOMSON CANADA LIMITED c.o.b. as
CARSWELL THOMSON PROFESSIONAL PUBLISHING
Respondent/ Appellant on cross-appeal
(Appellant)
AND BETWEEN:
AND:
THE LAW SOCIETY OF UPPER CANADA
Appellant/Respondent on cross-appeal
(Respondent)
CANADA LAW BOOK INC.
Respondent/ Appellant on cross-appeal
(Appellant)
FILED
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CONTENTS
PART 1- FACTS ........................................................................................... 1
PART 11- QUESTIONS IN ISSUE .................................................................................. 1
PART Ill ARGUMENT ................................................................................................... 2
1- The l:m Society Authorized Infringement b) Providing Free-standing Photocopiers in the
Great L.ibrary ............................................................................................................................................................... 2
A. The Fcdcml Court of Appeal Decision with rt.!spcct to the meaning of the words "to authorize" is
in accordance with previous authoritil.!s on t h < ~ t question.............. . ................................................... 2
i) The meaning of"to authorizt;"........................ ............... . ................................................... 2
ii) T h ~ constituent clements of an nuthorization" ........................................................................................ 3
::::;. To control the usc of the means to infringe ................................................................................................ 3
::::;. To "sanction, approve or countenance'" the infringement ........................................................................... 4
B. The Federal Court of Appeal Decision with respect to the meaning of the words to authorize" is
in accordance with the jurisprudence emanating from countries that have a legal tradition similar to
Canada's .................................................................................................................................................................... 7
C. The Federal Court of Appeal correctly applied the law respecting the concept of"to authorize" to
the facts of the present case .................................................................................................................................... 10
i) The Law Society controlled the entire environment for infringing .......................................................... 10
ii) The Law Society "sanctioned, approved or countenanced" the use of the free-standing
photocopiers to make illegal reproductions of works protected by copyright .................................................... II
iii) The Law Society did not take reasonable or effective precaution against infringement of
copyright ............................................................................................................................................................ II
D. Section 30.3 of the Act would not have been enacted in 1997 if the availability of free-standing
photocopiers in a library could in no event give rise to the library's liability for copyright infringement .............. l2
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II The Oblalnlng of Pholocopy Licences from CollccUc Soclclles Conlllulcs an AllerJoalhclo
lnfrlngementnnd Should be Considered In :on) Anol)sis of lhe f:oir J>eallng J>efen<c ....................................... J4
A. Even in the Unircd Slates. the ;wailability of licences is taken into account in the determination of
the "fairness" of a use ........................................................... , ............................................................................ ,. ... 14
i) The U.S. Copyright Act recognizes that the effect of the use upon the potential market for or
value of the work is a factor in the determin<ttion of"fair use" ............................................................ l4
ii) u.S. doctrinal and jurisprudential authorities ore to the effect that the availability of a licence
should be considered in an analysis of the fair usc defence ............................................................................... 15
B. The availability of copyright licences is relevant to a dctcnninmion offair dealing"' in Canada ................ 17
PART IV- CONCLUSION AND ORDER SOUGHT.. .................................................... 18
PART V- AUTHORITIES ............................................................................................. 20
PART 1- FACTS
I. The Interveners La Societe! quc!bc!coisc de gcstion collective des droits de reproduction
("Coplbcc") aud The Canadian Copyright Licensing Agency, fonnerly known as CANCOPY
("Access Copyright") have taken cognizance of the factual representations made by the Law
Society of Upper Canada (the "Law Society") as well as of those made by CCH Canadian
Limited, Thomson Canada Limited c.o.b. as Carswell Thomson Professional Publishing and
Canada Law Book Inc. (the "Publishers"). The Interveners have no personal knowledge of most
of the facts at issue in this case and will rely on the facts as set out in paragraphs 1 through 17 of
the Federal Court of Appeal Decision appealed from, and the conclusions reached by the Federal
Court of Appeal.
CCH Canadian Ltd. v. Law Society of Upper Canada, [2002] 4 F.C. 214 (F.C.A.)
(hereinafter the "Federal Court of Appeal Decision")
PART II- QUESTIONS IN ISSUE
2. Copibec and Access Copyright do not intend to address all the questions raised by the
Law Society in its factum. Their intervention addresses solely the third question (authorization)
and the fifth question (fair dealing).
3. With regard to the third question, Copibec's and Access Copyright's position is that the
Federal Court of Appeal did not err in concluding that the Law Society had "authorized" the
reproduction of copyright materials by providing free-standing photocopiers in the Great Library.
4. With regard to the fifth question, Copibec and Access Copyright submit that the Federal
Court of Appeal's analysis of fair dealing correctly considered whether alternatives to
infringement were available. Copibec and Access Copyright further submit that the obtaining of
photocopy licences constitutes an alternative to infringement, and therefore should be considered
in any analysis of the defence of"fair dealing".
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PART Ill- ARGUMENT
The Law Society Authorized Infringement by Providing Free-standing
Photc.copiers in the Great Library
5. Subsection 27(1) of the Copyright Act (the "Act") provides that "[i]t is an infringement of
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copyright for any person to do, without the consent of the owner of the copyright, anything that I
by this Act only the owner of the copyright has the right to do". The exclusive rights of the
copyright owner are enumerated at subsection 3 (I) of the Act and include the sole right "to I
produce or reproduce" a work or any substantial part thereof. They also include the sole right "to
authorize" any of the acts which are reserved to the copyright owner. The right to authorize acts I
which are reserved to the copyright owner is distinct from the right to perform these acts.
o Copyright Act, R.S.C. 1985, c. C-42, s. 3(1) and 27(1)
John S. McKEOWN, Fox Canadian Law of Copyright and Industrial Designs, 3'' ed.
(Toronto: Carswell, 2000) at 509
6. In the present case, the Federal Court of Appeal found that the Law Society, by providing
free-standing photocopiers in the Great Library, infringed the Publishers' exclusive right to
authorize reproductions of their works (Federal Court of Appeal Decision at para. 113, per
Linden J.A. and at para. 266, per Rothstein J .A.).
7. Copibec and Access Copyright submit that the Federal Court of Appeal's interpretation of
the words "to authorize" in subsection 3( I) of the Act is correct.
A. The Federal Court of Appeal Decision with respect to the meaning of the words "to
authorize" is in accordance with previous authorities on that question
i) The meaning of "to authorize"
8. The jurisprudence is to the effect that the expression "to authorize" at subsection 3(1) of
the Act has the ordinary meaning of "to sanction, approve or countenance".
Amstrad Consumer Electronics PLC v. British Phonographic Industry Limited, [1986] F.S.R.
159 at 207 (C.A.)
0
Ash v. Hutchinson & Co. (Publishers), Ltd. (1936]2 All E.R. 1496 at 1500 (C.A.)
Muzak Corp. v. CAPAC, (1953]2 S.C.R. 182 at 193 (hereinafter"Musak")
9. In Muzak, supra, it was decided that in order to "authorize" within the meaning of the
Act, a person must "sanction, approve or countenance" more than the mere use of a device that
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might be u:;cd to infringe copyright. To conclude othcrwbc would be "as if a person
who lets a gun to is to be charged with "authorizing" hunting without a game licence".
This Honourable Court thereby recognized that the person who authorizes the use of a device is
presumed to authorize only those uses which arc legal.
Mu:ak, .mpra at 189 (per Rand J.)
P.O. HITCHCOCK, "Home Copying and Authorization" (1983), 67 C.P.R. (2d) 17 at 2931
JohnS. McKEOWN, supra at 511
I 0. On the other hand, a person need not go so far as to grant or purport to grant the right to
perform the reserved act. All that is required is that the "alleged authorizer" "sanction, approve
or countenance" the actual performance of the reserved act.
Muzak, supra at 193 (per Kellock J.)
P.D. HITCHCOCK, supra at 3031
John S. McKEOWN, supra at 511
ii) The constituent elements of an "authorization"
=:> To control the use of the means to infringe
I I. The Privy Council's decision in Vigneux v. Canadian Performing Right Society Ltd. has
been cited by this Court as the authority for the proposition that a certain degree of control over
the use of the potentially infringing device is required in order for a court to conclude that there
has been an "authorization" within the meaning of subsection 3(1) of the Act. In Vigneux, the
Privy Council refused to find the owners of a gramophone leased to a restaurant keeper liable for
having illegally authorized the public performance of a work, since "[t]hey had no control over
the use of the machine; they had no voice as to whether at any particular time it was to be
available to the restaurant customers or not".
Vigneux v. Canadian Performing Right Society Ltd, [1945] 2 D.L.R. 1 at II (P.C.)
(hereinafter .. Vigneux")
Muzak, supra at 190-191 (per Kellock J.)
John S. McKEOWN, Fox Canadian Law of Copyright and Industrial Designs, 3,. ed.
(Toronto: Carswell, 2000) at 5tl
12. The requirement that there be control over the use of a device that could be used to
infringe is consistent with the notion that "[a] person cannot be said to authorize an infringement
of copyright unless he bas some power to prevent it".
Amstrad Consumer Electronics PLC v. British Phonographic Industry Limited, sup;a at 217
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Mcwrlwuu v. Umv.,.II/J' of N<w South Wuh.. (1'1761 IU'.C. lSI at 158 (Au!.ll.C.)
(hereinafter Moorlunml')
13. Hence, the manufaclurer, relailer or lessor of a device which could be used to infringe
copyright will generally not be considered lo have "authorized" the commission of infringing
acts, unless that person controls the use made of the device once purchased or leased.
Amstrad Consumer Electronics PLC v. British Phonographic Industry Limited, supra
C.B.S. Songs Ltd v. Amstrad Consumer /ectronics f'LC, [1988] All E.R. 484 (H.L.)
(hereinafter "C. B.S. Songs")
14. However, the requirement that the alleged authorizer actually control the use of the
potentially infringing device does not mean that the exercise by the end user of a certain degree
of discretion is a bar to a finding of "authorization".
Canadian Cable Television Assn. v. Canada (Copyright Board), (1993] 2 F.C. 138 at 155-
156 (F.C.A.}, leave to appeal tc the Supreme Court of Canada refused
Mellor v. Australian Broadcasting Commission, [1940] A.C. 491 at 501 (P.C.) (hereinafter
"Mellor")
Wins/one v. Wurlitzer Automatic Phonograph Co. of Australia Proprietary Ltd., [1946]
V.L.R. 338 at 354-355 (Viet. S.C.) (hereinafter "Wins/one")
15. Therefore, the idea of "control" is not so much a question of controlling the
circumstances surrounding the commission of an infringing act in particular. Rather, it is a
question of whether the alleged authorizer had enough control over the possibility of an
infringement.
~ To "sanction, approve or countenance" the infringement
16. As seen in Paragraph 9, above, to "sanction, approve or countenance" an infringement
involves more than the mere act of providing to another person a device that may be used to
infringe copyright. To "authorize" within the meaning of subsection 3(1) of the Act requires a
certain awareness on the part of the alleged authorizer. The decision of the High Court of
Australia in Moorhouse refers to the "mental element" of the "authorization":
!nhe word "authorize" connotes a mental element and it could not be inferred that a person had,
by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect
that the act might be done.[ ... )
Moorhouse, supra at 158 (per Gibbs J.)
17. An "authorization" to infringe does not have to be express to give rise to liability for
copyright infringement. It is possible to infer from a person's behaviour that he or she implicitly
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"sanctioned, approved or coumenanccd" the performance of an act that subsection 3( I) reserves
to the copyright owner.
Apple Computer Inc. v. Macklmosh Computer.r Ltd .. [ 1988] I F.C. 673 at 697 (F.C.A.), afl'd
[1990] 2 R.C.S. 209
Moorhou.re, supra at 158 (per Gibbs J.) and 165 (per Jacobs J.)
Performing Right Society Ltd v. Ciryl Theatrical Syndicate Ltd. (1924), I K.B. I at 9 (C.A.)
Sunny HANDA, Copyright Law In Canada (Toronro: Butterworths, 2002) at 209
P.D. HITCHCOCK, supra at 35-36
18. Moreover. ' ~ knowledge of the performance of a specific act of infringement is not
necessary for f.udmg "authorization". Indeed, "[w]here a general permission or invitation may be
implied, it is clearly unnecessary that the authorizing party have knowledge that a particular act
comprised in the copyright will be done". [Fmphasis added] Therefore, where that general
permission or invitation to infringe may be implied from the alleged authorizer's behaviour, the
general presumption that a person who authorizes an activity does so only for legal activities
may be rebutted.
Moorhouse, supra at 165 (per Jacobs J.)
P.D. HITCHCOCK, supra P.t 32, 35-36
19. One of the factors the courts take into account in determining if a person has "authorized"
copyright infringement is whether or not that person is interested in the operation of the
infringing device. Thus, the Supreme Court of Victoria in Winstone distinguished the Vigneux
case on the ground that the owner of a gramophone used in the unauthorized public performance
of musical works was to receive a share of the profits rather than a fixed weekly rental like in
Vigneux. It follows that where the alleged authorizer had an interest in the operation of the
infringing device, a court will more easily come to the conclusion that the alleged authorizer has
"sanctioned, approved or countenanced" the infringement.
Wins/one, supra at 353w354
Vigneux, supra at 12
Muzak, supra at 189 (per Rand J.)
20. Another relevant factor in the determination of whether or not the alleged authorizer has
"sanctioned, approved or countenanced" the infringement is whether that person knew or had
reason to suspect that infringement was likely to occur. This may be inferred when the alleged
authorizer has provided both the instrument to infringe and the work protected by copyright.
Hence, a library, which makes available to the public both the copyright material and the
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photocopier with which copies of that material can be made, will be presumed to have known
that it was likely that the users of the library might usc the photocopiers to reproduce substantial
pans of material prote,tcd by copyright, contrary to copyright law.
Moorhouse, .wpra at 159 (per Gibbs J.)
21. Once it is established that the alleged authorizer knew or should have known that the
means by which an infringement of copyright may be committed were likely to be used for that
purpose, the alleged authorizer's indifference to this possibility might lead to an inference that
the infringing act has been authorized.
Moorhouse, supra at 165 (per Jacobs J.)
Performing Right Society Ltd. v. Ciry/ Theatrical Syndicate Ltd., supra at 9
22. If indifference is a relevant factor in the determination of whether or not an
"authorization" has been granted, it follows that the alleged authorizer has the duty, in order to
liability, to attempt to limit the use of the devices under its control to non-infringing
activities. An omission to take "reasonable or effective precautions against an infringement of
copyright" is a relevant factor in the determination of the "authorization".
supra at 50 I
Moorhouse, supra at 161-162 (per Gibbs J.)
23. No jurisprudential examples of what constitutes a "reasonable or effective precaution
against an infringement of copyright" are yet available. However, the Moorhouse case contains
examples of measures which were judged not to be reasonable or effective. In that case,
involving similar facts to those of the present case, the Coun concluded that the various
"measures" taken by the library, including the posting of notices referring to the Copyright Act
1968, were insufficient. According to the Coun, the reference to a piece of legislation that is
difficult to understand for the layman rendered the notice useless in practice. The Coun also
noted that there was no evidence that the library's "copyright policy" had ever been actively
enforced.
Moorhouse, supra at 160-161 (per Gibbs J.)
24. It follows from Moorhouse that a person who "sanctions, approves or countenances" the
use by another of a device under the first person's control must qualifY the invitation to use as
one limited to activities that do not violate copyright law. This qualification must be precise,
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efficient and aimed at a reasonable person (and not only at jurists capable of interpreting
copyright law). Moreover, the policy must be enforced in order to be considered sufficient
25. The relevant factors to be taken into consideration in determining whether or not a person
has "authorized" acts of copyright infringement arc described by Gibbs J. in Moorhouse:
A person who had under its control the means by which an infringement of copyright may be
committed ... and who makes it available to other persons, knowing. or having reasons to
suspect, that it is likely tc be used for the purpose of committing an infringement, and omitting
to take reasonable steos to limit its use to legitimate purposes, would authorize any infringement
that resulted from its use. [Emphasis added]
o Moorhouse, supra at 158-159 (per Gibbs J.)
26. It is submitted t h ~ . t the Federal Court of Appeal, in its determination of whether the Law
Society conducted itself in a manner from which an "authorization" may be inferred, correctly
applied all the relevant factors and legal precedents on this question. The Federal Court of
Appeal took into account namely: that the Law Society provided both the photocopier allowing
for copyright infringement and the works protected by copyright; that it had sufficient reason to
suspect that the photocopiers would be used to infringe copyright but was indifferent to this
possibility; and that the Law Society omitted to take "reasonable or effective precaution against
an infringement of copyright".
o Federal Court of Appeal Decision paras. 109-111 (per Linden J.A.) and 258, 261, 265-266
(per Rothstein J.A.)
B. The Federal Court of Appeal Decision with respect to the meaning of the words "to
authorize" is in accordance with the jurisprudence emanating from countries that
have a legal tradition similar to Canada's
27. The Law Society argues that the Federal Court of Appeal erred in applying Australian
law to the facts before it In particular, the Law Society contends that the ruling in Moorhouse,
supra, is inconsistent with Canadian law (Appellant's factum, paras. 92 and 96). Copibec and
Access Copyright submit that these arguments should be rejected. Canadian courts are allowed
to consider foreign sources in interpreting Canadian statutes, "either to see how the same
interpretative problem was resolved in other jurisdictions or to use it to directly justifY the
meaning adopted by an analogy or a contrario argument".
e
P.-A. COTE, The Interpretation of Legislation in Canada, 3'' ed. (Toronto: Carswell, 2002)
at 552
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28. Like in Canadian copyright law, the of any act comprised in the copyright
is reserved to the copyright owner in both U.K. and Australian copyright law. The U.K.
Copyright. Designs and Patents Act 1988 provides at subsection 16(2) that copyright in a work is
infringed "bv a person who without the licence of the copyright owner does, or authoriz.es
another to do, any of the acts restricted by the copyright". Similarly, the Australian Copyright
Act /968 provides at subsection 36(1) that the copyright in a work is infringed by a person who,
without the authorization of the owner of the copyright "does in Australia, or authorizes the
doing in Australia of, any act comprised in the copyright".
U.K. Copyright, Designs and Patents Act /988 (c. 48), s.I6(2)
Australian Copyright Act/968 (Cth), s. 36(1)
29. The Law Society submits that "Australian courts interpret "authorization" more broadly
[than Canadian and U.K courts]". It refers to the decision of this Court in Muzak, supra, to the
effect that "a provider of equipment that can be used lawfully does not purport to "authorize" an
unlawful use of the equipment" (Appellant's factum, para. 91, reference omitted). The Law
Society also argues that the following statement of Australian law was rejected by the House of
Lords in C. B.S. Songs, supra at 493 as being "stated much too widely":
A person may be said to authorize another to commit an .afringement if the one has some fonn
of control over the other at the time of infringement or, if he has no such control, is responsible
for placing in the other's hands materials which, by their nature, are almost inevitably to be used
for the purpose of an infringement.
Appellant's factum, para. 92, citing RCA Corp. v. John Fairfox, Sons Ltd., (1982] R.P.C. 91
at 100 (S.C.N.S.W.)
30. However, the decision under appeal does not imply that the aforesaid definition of "to
authorize" should be applied in Canada. Rather, the Federal Court of Appeal acknowledged that
both Vigneux and Muzak held that merely supplying the means to infringe will not constitute an
"authorization" (Federal Court of Appeal Decision, paras. 104-108, per Linden J.A. and paras.
262-264, per Rothstein J.A.). The Federal Court of Appeal, considered the leading Canadian
cases on the question of "authorization" and correctly distinguished them on the facts (Federal
Court of Appeal Decision, para. I 09, per Linden J.A., and paras. 264-265, per Rothstein J.A.).
Moreover, as noted by the Respondents, the House of Lords in C.B.S. Songs, supra, "rejected
only the latter of the two alternatives as being too widely stated" (Respondents' factum, para.
56). In that case, the Honse of Lords refused to conclude that Amstrad, by merely selling double-
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tape recorders, had "authori7.cd" the making of illegal copies of records. II found that Amstrad
had no conlrol over the usc made of the recorders once sold, thus reiterating that the element of
control over the use of the infringing device is determinative.
C. B.S. Songs, supra at 493-494
31. In any event, the ruling in Moorhouse is nut inconsistent with this Court's decision in
Muzak, contrary to the Law Society's contentions. In Muzak, the Court did not exclude the
possibility that a person, by his conduct, could lose the benefit of the legal presumption that he
only authorizes legal activities:
There is not a syllable in the material to suggest that Muzak has made itself a party in interest to
the performance either by warranting the right to perform without fee or by anything in tile
nature of a partnership or similar business relation.
Muzak, supra at 189 (per Rand J.)
32. It is submitted, as was suggeted by P .D. Hitchcock in its analysis of the Muzak case, that
the judges in Muzak did not limit the type of conduct or relationships that could be considered
sufficient to rebut the presumption of a "legal-use-only" authorization to the existence of a
"partnership or similar business relation". The requirement of control over the use of the
infringing instrument not being present in the case before them, the judges in Muzak did not have
to expand on the issue of what type of behaviour on the part of the alleged authorizer should or
should not amount to a finding of "authorization".
P.D. HITCHCOCK, supra at 34-35
John S. McKEOWN, Fox - Canadian Law of Copyright and Industrial Designs, 3"' ed.
(Toronto: Carswell, 2000) at 511
33. In Moorhouse, the High Court of Australia identified a type of conduct which should lead
a court to rebut the general presumption of a "legal-use-only" authorization. In that case, the
Court noted the installation of free-standing photocopiers in a library full of material protected
by copyright, the library's apparent indifference to the commission of copyright infringement
despite the ample reasons to suspect that the photocopiers would be used for illegal purposes,
and the library's omission to take reasonable precaution to limit the use of the photocopiers to
legitimate purposes. In assessing whether the general presumption of a "legal-use-only"
authorization should be rebutted in the present case, the Federal Court of Appeal correctly found
guidance in the reasoning of the Australian court, which was faced with very similar facts.
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34. It should afro be nolcd lhar 13rirish aulhors have expressed lhc opinilln !hal "( ... ) UK
clluns would reach a similar concf usion 10 rhal in Moorhouse".
o Sir Hugh LADDIE el al .. The Modem Law of Copyright and De.rlgn.l, 3'' ed. (London:
Bunerworths, 2000) al I 592
35. II is therefore submitted that the criteria set out in Moorhouse are not inconsistent with
Canadian law respecting "authorization". Consequently, the Federal Coun of Appeal did not err
in considering Moorhouse and in coming to the conclusion that the Law Society had
"authorized" the infringement of the Publisher's copyright.
C. The Federal Court of Appeal correctly applied the law respecting the concept of "to
authorize" to the facts of the present case
i) The Law Society controlled the entire environment for infringing
36. It is not disputed that the Law Society installed free-standing photocopiers in the Great
Library and that patrons of the Library had unrestricted access to those machines to make copies
of the works contained in the Library, including the Publishers' material. Without the Law
Society's intervention, patrons of the Great Library would have had no means of making illegal
reproductions of works contained in the Library.
Respondents' factum, para. I 6
Federal Court of Appeal Decision, para. 104 (per. Linden J.A.) and paras. 256-257 (per
Rothstein J.A.)
37. The Law Society controlled the photocopiers and the works susceptible of being
reproduced. Moreover, contrary to the supplier of the gramophone in Vigneux, supra, the Law
Society did more than merely provide the means with which to carry out the copyright
infringement: it had control over the use of the machines; it had "a voice as to whether at any
panicular time [they were] to be available to the [patrons) or not".
Federal Court of Appeal Decision, para. 109 (per Linden J.A.) and para. 265 (per Rothstein
J.A.)
Vigneux, supra at II (a contrario)
38. Therefore, the Law Society controlled the entire environment in which infringement was
susceptible of taking place.
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ii) :rll..1aw Society approved or the of the frees(andin&
photocopier:; to make reproductions of works protected hy copyrh,tht
39. The Law Society, by making available, in an environment that it controlled, both the
means to infringe and the copyright protected works that patrons could be tempted to infringe,
implicitly invited patrons to commit acts of copyright infringement:
To use a variation of the analogy of Rand. J. in Muzak, supra, it is as if the Law Society operates
a game park, and provides each of its invited guests with a loaded gun.
o Federal Court of Appeal Decision, para. 109 (per Linden J.A.)
40. It is clear that the Law Society knew or had reason to suspect that infringement was likely
to occur. In fact, as noted by Linden J.A., there is evidence that the Law Society anticipated such
infringing activities, since it posted notices, near the photocopiers, advising users that "certain
copying may be an infringement of copyright law".
o Federal Court of Appeal Decision, para. Ill (per Linden J.A.)
41. The Law Society showed indifference to the possibility of copyright infringement.
Indeed, rather than attempting to prevent infringements of copyright that it knew were likely to
occur, the Law Society merely posted, near the photocopiers, a notice indicating that it was not
responsible for such infringements. This indifference is so obvious that it amounts to a "sanction,
approval or countenance" of such infringements.
Federal Court of Appeal Decision, para. 113 (per Linden J.A.) and para. 266 (per Rothstein
J.A.)
42. It is further submitted that the Law Society was not only indifferent to the infringement,
but that it had a monetary interest in the operation of the photocopiers. Indeed, part of the Law
Society's mission is to "provid[ e] the community with access to its extraordinary collection of
legal resources" (Federal Court of Appeal Decision, para. I 62, per Linden J.A.). In order to
fulfill this objective, the Law Society must ensure that a sufficient number of copies of these
legal resources are made available. By installing free-standing photocopiers in the Great Library,
the Law Society avoids having to purchase multiple copies of the commercially available books.
iii) The Law Society did not take reasonable or effective precaution against infringement of
copyright
43. The Law Society argues that the posting of a notice near the photocopiers was sufficient
to warn its patrons that "the Law Society cannot legitimize illegitimate copying" (Appellant's
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factum, para. I 00). However, the wami11g cannot be considered a "reasonable or effective
precaution against an infringement of copyright". The waming was not precise, efficient and
aimed at the average library user: it merely referred to the fact that copyright law governs the
making of photocopies, without any explanation of the content of the Act. The notice also
mentioned that "certain copying may be an infringement of copyright law", but it did not warn
patrons that they were forbidden to use the photocopiers for infringing purposes. Moreover, the
Law Society did not provide an example of what copyright infringement is, or is not, nor did it
direct patrons to a competent person who could assess whether or not copyright would be
infringed in a specific instance.
44. As was recognized in Moorhouse, mere reference to a statute whose meaning is obscure
to the average person "would not be an effective way of conveying to the users of the library
advice as to how they should act to obey the law of copyright". In fact, the wording of the notice
installed by the Law Society in the Great Library is even more obscure than the notice contained
in the guide distributed to the patrons of the library in Moorhouse which was found to be
insufficient.

Federal Court of Appeal Decision, para. 4
Moorhouse, supra at 160 (per Gibbs J.)
45. Moreover, the evidence is to the effect that the Law Society took no measures to enforce
its notices. It cannot be said that the measure was efficient.
Federal Court of Appeal Decision, para. 110 (per Linden J.A.)
46. Therefore, the Federal Court of Appeal was correct in concluding that the "effort" taken
by the Law Society to exercise its control or influence over the use of the photocopiers was
insufficient to set aside a finding of "authorization".
Federal Court of Appeal Decision, para. II 0 (per Linden J .A.) and para. 266 (per Rothstein
J.A.)
D. Section 30.3 of the Act would not have been enacted in 1997 if the availability of
free-standing photocopiers in a library could in no event give rise to the library's
liability for copyright infringement
47. The Copyright Act was amended in 1997 to introduce new provisions relating to
photocopiers installed in educational institutions, libraries, archives and museums. These
provisions provide for an exception to copyright infringement in certain circumstances:
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JO.J (I) An cduc:ational in!)lilulion or a Jil;rary. ardtive or mu!>cUm docs nor infringe copyright
where
(a) a copy of a work is made U>inB a machine for the making. by rcprographic reproduclion, of
copies of wurk& in princed fonn;
(b) the machine is inSiallcd by or with the approval of1he educational inSiitution,library, archive
or museum on its premises for use by students, insrructors or staff at the educational inslitution
or by persons using the library, archive or museum; and
(c) there is affixed h1 the prescribed manner and location a notice warning of infringement of
copyright.
(2) Subsection (I) only applies if, in respect of a reprographic reproduction,
(a) the educational institution, library, archive or museum has entered into an agreement with a
collective society that is authorized by copyright owners to grant licences on their behalf;
(h) the Board has, in accordance with section 70.2, fixed the royalties and related terms and
condition:; in respect of a licence;
(c) a tariff has been approved in accordance with section 70.15; or
(d) a collective society has filed a proposed tariff in accordance with section 70.13.
[Emphasis added]
Copyright Act, subsections 30.3(1) and 30.3(2)
Copibec and Access Copyright submit that the adoption of the aforesaid provision
indicates that the availability of photocopiers in a library can give rise to the library's liability for
copyright infringement by virtue of the notion of"authorization", and that the posting of a notice
is not sufficient to avoid liability. Indeed, it is trite law that the legislature "does not speak in
vain":
It is presumed that the legislature avoids superfluous or meaningless words, that it does not
pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and
to have a specific role to play in advancing the legislative purpose.

Ruth SULLIVAN, Driedger on the Construction of Statutes, 3'' ed. (Toronto: Butterworths,
1994) at 159
49. The enactment of section 30.3 under the general heading of "Exceptions" is presumed to
mean something and to serve a pwpose. If the presence of free-standing photocopiers in a library
could not give rise to the library's liability for copyright infringement, section 30.3 would be
useless.
50. It is submitted that, absent section 30.3 of the Act, the installation of free-standing
photocopiers in a library for use by its patrons will give rise to the library's liability for copyright
infringement.
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JJ.. Jhe Obtfiplpg of Pbotocou Ligase from Collesttye Societig
Copttltutg ap Altematiye to lgfrip2emept d Should be Copaldered Ia
apy ApaiY'is of the Fair Dgi!Dg Defeaee
5 I. Among the statutory defences to copyright infringement is "fair dealing'' for the purposes
of research or private study, criticism or review, or news reporting. These defences are found at
sections 29to 29.2 of the Act.
Copyright Act, ss. 29,29.1 and 292
52. In considering the application of section 29 (fair dealing for the purpose of research or
private study) to the Law Society's activities related to its custom photocopying service, the
Federal Court of Appeal correctly acknowledged that the availability of alternatives to the
"dealing" is a relevant factor in the determination of the "fairness" of such dealing (Federal
Court of Appeal Decision, at para. 156-157, per Linden J.A.). However, the Federal Court of
Appeal did not discuss whether the obtaining of a licence is a relevant alternative to that dealing.
53. Copihec and Access Copyright submit that the Federal Court of Appeal was correct in
holding that the availability of alternatives to copyright infringement was relevant to the question
of fairness of the dealing. Copihec and Access Copyright further submit that the obtaining of
licences from collective societies constitotes a valid alternative to infringement and should he
considered in the determination of the fairness of a particular dealing.
54. The availability of copyright licences is interpreted against the alleged infringer in the
U.S., where the "fair use" doctrine is generally interpreted in favour of the users of copyright
material. Copibc<: m;d A ~ c e s s Copyright submit that the availability of copyright licences should,
a fortiori, he interpreted against a finding of "fair dealing" in Canada, where that defence is
interpreted much more restrictively.
A. Even in the United States, the availability of licences is taken into account in the
determination of the "fairness" of a use
i) The U.S. Copyright Act recognizes that the effect of the use uoon the potential market for
or value of the work js a relevant factor in the determination of "fair use"
55. The U.S. Copyright Act, at s. 107, provides a list of non-exhaustive factors that should be
considered when determining whether the use made of a work is a fair use:
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Noh\ Ill\! prm isions of scc1ion') 106 I 06A. lhc fur U)( of a cop}riglncd work.
Including such k>y rL'production in copies or phonorccords or by any other means specified
b)' thai section, 10r purposc5 such as criticism, comment. news reporting, leaching (including
muhiplc copies for classroom usc), scholarship, or research. is not an infringement of copyrigtu.
In determining whether the usc made of a work in any particular case i'i a f.air usc the factors co
be considered shall include-
{ 1) a he purpose and character of I he usc, including whether such usc is of a commercial nature or
is for nonprofit educational purposes;
(2) the nmurc of the copyriglued work;
(3) the amount and substanriality 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 copvrightcd \\ork. The fact
that a work is unpublished shall not itself bar a finding of fnir usc if such finding is made upon
consideration of all the above factors. [Emphasis added]
U.S. Coppiglu Act, 17 U.S.C. 107
56. Section 107 of U.S. Copyrighl Acl codified the prior judicial doctrine of fair use
without narrowing its scope in any way. The jurisprudence developed under this section, as well
as that developed before its enactment, is therefore relevant to the analysis of the broadly
encompassing fair doctrine.
M. NIMMER and D. NIMMER, Nimmer on Copyright (San Francisco: Matthew Bender,
2003) at 13-149 and 13-150
ii) U.S. doctrinal and jurisprudential authorities are to the effect that the availability of a
licence should be considered in an analvsis of the fair use defence
57. As seen above. one of the factors in the determination in the U.S. of whether the usc
made of a work is a fair usc is ''the effect of the use upon the potential market for or value of the
copyrighted work". Therefore, the greater the effect a specific use has upon the potential market
for a work protected by copyright, the less "fair" the use will be, according to U.S. courts. The
Supreme Court of the United States in Harper & Row Publishers, Inc. v. Nation Enterprises has
defined the applicable test for the determination of"fairness'' with respect to that factor:
More important, to negate fair use, one need only show that if the challenged use "should
become widespread, it would adversely affect the potential market for the copyrighted work,..
Harper & Row Publishers, Inc. v. Nation E/1/erprises, 225 U.S.P.Q. 1073 at 1084 (S. Ct.
1985)
See also Ringgold v. Black E/1/ertainment Television l11c., 44 U.S.P.Q. 2d (BNA) 1001 at
1010(2dCir.l997)
See also M. NIMMER and D. NIMMER, Nimmer on Copyright (San Francisco: Matthew
Bender, 2003) at 13-183 and cases cited therein
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58. It has in v:1rious Amcrkan with fair usc in the context of
reproductions of works using photocopiers that not only markets should be
considered in determining if the infringing activity would affect the potential market
for the copyrighted work: "traditional. reasonable. or likely to be developed markets" are also to
be considered. Therefore, a court must not only consider the potential loss of sales of the work
itself, but also the potential loss of licensing revenues.
o American Geoph)'Sical Union v. Texaco Inc., 35 U.S.P.Q. 2d (BNA) 1513 al 1526-t528 (2d
Cir. 1994 ). cerl. denied, 116 S. Ct. 592 {1995) (hereinafter" Texaco")
o Basic Books. Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 at 1534 (S.D.N.Y. 1991)
o Princeto/1 Unil. f're.u v. Uichiga11 Doc. Sens., 40 U.S.P.Q. 2d (BNA) 164 I at 1646 (6
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1996). cat. deni!!d, 117 S. Ct. 1336 (1997)._(hcreinnHer''Princeton umlersi('Press")
59. It tollo1vs that even umkr the much broader U.S. "fair usc" doctrine, ''the existence of an
established license fcc system is highly relevant" to the inquiry as to whether a defendant's use
of a copyright protected work is "fair".
Texaco, supru at 1528
Princeton Unilersity Press. supra at 1646, footnote 4
60. Underlying this idea of an "established license fee system" is a principle consistent with
the fourth factor identified by the Federal Court of Appeal in the present case, and discussed
below, namely the availability of "alternatives to the dealing":
[l]t is sensible that a particular unauthorised usc should be considered ''more fair" when there is
no ready market or means to pay for the use, while such an unauthorized :;hould be
considered ''less fair'' when there is a ready market or means to pay for the use.
Texaco, supra at 1528
61. Following this logic, the U.S. Court of Appeal for the Second Circuit in Texaco expressly
considered the existence of collective societies similar to Copibec and Access Copyright as a
relevant factor against a finding of"fair use":
Though the publishers still have not established a conventional market for the direct sale and
distribution of individual articles, they have created, primarily through the CCC [Copyright
Clearance Center], a workable market (or institutional users to obtain licenses for the right to
produce their own copies of individual articles via photocopying.
[ ... ]
(S]incc there currently exists a viable market for licensing these rights for individual journal
articles, it is appropriate that potential licensing revenues for photocopying be considered in a
fair use analysis.
Texaco, supra at 1527-1528
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62. It follows that the e.xistenec of collective societies offering licences by virtue of which
users may P"Y for the r<'produetion of works protected by <:opyright will pluy against a finding of
"fair usc".
IJ. The nntilnbility of copyright licences b rele\:mlto n determination of "fair dealing"
in Cnnnda
63. The U.S. "fair usc" defence is much broader than the Canadian "fair dealing" defence.
For example. the Canadian Act restricts the of the defence to a limited number of
dealings. whereas the U.S. Copyright Act docs not. Moreover. although the requirement that the
activity be "fnir" is common to both statutes, this notion is applied more restrictively in Canada.
64. Although U.S. copyright law is in many important respects different from Canadian
copyright law and must therdore be very carelilliy scrutinized. Canadian courts can "find some
assistance in examining the experience in the United States''.
Compo Co. Ltd v. Blue Crest Music Inc. [1980] I S.C.R. 357 at 366367
65. In the present case. the Federal Court of Appeal looked at the criteria developed in
foreign jurisdictions and identified six relevant factors to be considered in the determination of
the "fairness" of a dealing (Federal Court of Appeal Decision. paras. 22 and 147-150, per Linden
J.A.). Among these relevant factors is the availability of 'alternatives to the dealing" (Federal
Court of Appeal Decision, paras. 156-158, per Linden J.A.).
66. The Federal Court of Appeal also identified "the effect of the dealing on the work" as a
relevant factor to consider in the detern1ination of"faimess". It noted with approval that both the
English Court of Appeal and the United States Supreme Court consider the economic effect of
the dealing on the value of the protected work as a very important factor (Federal Court of
Appeal Decision, para. 160, per Linden J.A.). The effect of the allegedly infringing activity on
the market for, or value of, a work is therefore relevant in Canadian copyright law.
favid VAVER, Copyright Law (Concord: Irwin law, 2000) at 191, 199-200
67. Copibec and Access Copyright submit that the obtaining of photocopy licences, when
they are offered by collective societies that are authorized by copyright owners to grant licences
on their behalf, is an established and readily available alternative to the dealing. Where collective
societies have created a workable market for institutional users to obtain licences for the right to
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reproduce works protected by copyright. courts should acknowledge that the reproduction of
such works. ubsent 01 licence. will generally affect the potenti;tl market for tlwse works, and take
this factor into account in any analysis of whether a dealing is '"fair".
68. Institutional users may currently obtain pl10tocopy licences in Canada. In fact, Access
Copyright has on several occasions offered licenses to the Law Society, thus providing it with a
readily available alternative to copyright infringement (Respondents' factum, paras. 3, p. 9,
under Factor #4).
69. The Law Society argues that the availability of a licence should not be considered in the
determination of the fairness of the dealing. since [a] copyright owner cannot unilaterally
determine whether certain activities will no longer be considered fair simply by offering a
licence for that activity'' (Appellant's factum. para. 116. under Factor #4). However, the Law
Society's argument cannot stand if the availability of a licence is accepted as only one of many
factors to be considered in the determination of "fairness. Moreover, in the determination of
whether the dealing will have an effect on the "market'' for the work, only "traditional,
reasonable or likely to be developed markets" are considered. Whether a market is "traditional,
reasonable or likely to be developed'' is not a decision that is solely in the copyright owner's
discretion.
70. In sum. the existence of collective societies offering photocopy licences is relevant
because these collective societies I) provide a readily available alternative to the dealing (fourth
factor identified by the Federal Court of Appeal), and 2) have contributed to the creation of a
viable market for licensing the right to reproduce literary works, a market which is susceptible of
being significantly affected by the dealing with the work (sixth factor identified by the Federal
Court of Appeal). Copibec and Access Copyright submit that this Court should make it clear that
the availability of licences from collective societies should be considered in any analysis of
whether a dealing is "fair".
PART IV- CONCLUSION AND ORDER SOUGHT
71. Regardless of the outcome of the present appeal and cross-appeal, Copibec and Access
Copyright respectfully submit that this Honourable Court should declare that:
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a) the Federal Court of Appcnl's intcrprclntion of the words to authorize" in
subsccti.m 3( I) of the Act. in the context of free-standing photocopiers in a library
environment. is correct;
b) the availability of "alternatives to the dealing" is a relevant factor in the
determination of the "fairness" of a dealing:
c) the obtaining of photocopy licences offered by collective societies constitutes an
alternative to infringement, and therefore should be considered in any analysis of
whether a dealing is "fair.
Copibcc and Access Copyright respectfully request an order granting them leave to
present oral argument in this appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Montreal, this 8'" day of September. 2003
CLAUDE BRUNET
OGJLVY RENAULT S.E.N.C.
1981 McGill College Avenue
Suite 1100
Montreal, Quebec H3A 3CJ
Telephone: (514) 847-4747
Fax: (514) 286-5474
CLAUDE BRUNET
BENOiT CLERMONT
MADELEINE LAMOTHE-SAMSON
Solicitors for the Interveners La Societe guebecoise de gestion
collective des droits de reproduction <Copibec\ and The
Canadian Copvright Licensing Agency (Access Copyright)
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I' ART V- AUTIIORITU.:S
nw numhers refer to rite paragraphs oft he
LEGISLATION
Copyright Act, R.S.C. 1985, c. C-42 ................................... 5. 7-9, II, 16, 17,47-52,63,71
Australian Copyright Act 1968 (Cth) ........................................................................... 23, 28
U.K. Cop)'l'iglus, Designs and Patents Act 1988 (c. 48) .................................................. .28
U.S. Cop)'l'ight Act, 17 U.S.C. I 07 ..................................................................... 55. 56,63
JURISPRUDENCE
American Geophysical L'nion v. Texaco Inc., 35 U.S.P.Q. (BNA)
1513 (2d Cir. 1994), cert. denied. 116 S. Ct. 592 (1995) ........................................... 58-61
Amstrad Consumer Electronhs PLC v. British Phonographic Jmlusfly
Limited, [1986] F.S.R. !59 (C.A.) ........................................................................... &, 12, 13
Apple Complller Inc. v. Mackimosh Computers Ltd., (1988] I F.C. 673
(F.C.A.), aff'd [1990]2 R.C.S. 209 ................................................................................... 17
Ash v. Hutchinson & Co. (Publishers) Ltd.. [1936] 2 All E.R. 1496
(C.A.) ................................................................................................................................... 8
Basic Books. Inc. v. Kinko 's Graphics Cotp., 758 F. Supp. 1522
(S.D.N.Y. 1991) ................................................................................................................. 58
C.B.S. Songs Ltd. v. Amstrad Consumer Electronics PLC, [1988] All
E.R. 484 (H.L.) ...................................................................................................... 13, 29, 30
CCH Canadian Ltd. v. La\1' Society of Upper Canada, [2002]4 F.C. 214
(F.C.A.) ................................................................. !, 6, 30, 36, 37, 39-42,44-46,52,65,66
Canadian Cable Television Assn. v. Canada (Copyright Board), [ 1993]2
F.C. 138 (F.C.A.), leave to appeal to the Supreme Court of Canada
refused ................................................................................................................................ l4
Compo Co. Ltd. v. Blue Crest Music Inc., [1980]1 S.C.R. 357 ....................................... 64
Harper & Row Publishers. Inc. v. Nation Enterprises, 225 U.S.P.Q.
1073 (S.Ct. 1985) .............................................................................................................. .57
Mel/or v. Australian Broctdcasting Commission, [1940] A.C. 491 (P .C.) ................... l4, 22
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,\/oorl/fl/1.1<' \', of ,\'ell' Solllh (1976] R.I'.C. I 51 (II.C.) ............ 12. 1618
20-25, 27, 31, 33. 35. 44
Mu:uk Corp. v. CAPAC. [ 1953] 2 S.C.R. 182 ....................................... 8. II, 19. 29-32, 39
Society Ltd v. Ciol Theatrical Syndicate Ltd. ( 1924),
I K.ll. I ( C' .A.) ............................................................................................................. 17. 21
l'riii<'<'IOII Unil'. \'. Michigan Doc. Sens .. 40 U.S.P.Q. 2d (BNA)
1641 (li
1
h Cir. 1996). cert. denied, 117 S. Ct. 1336 (1997) .......................................... 58, 59
IU 'A ( 'orJ>. v . .John Fair/ilx. Sons Ltd, [ 1982] R. P.C. 91 (S.C.N .S. W .) ........................... 29
,., /1/ack Teleision Inc .. 44 U.S.P.Q. 2d (BNA)
1 on 1 ( 2d c i r. 19971 ........................................................................................................... 57
I 'igii<'IIX 1. ( 'auwliau /light Society Ltd.. [1945] 2 D.L.R. I
(I'. C.) ................................................................................................................ II. 19, 30, 3 7
II 'i/1.1/CJIIl' \. ll'urlit:a .-111/ouwt ic Phonograph Co. <!l Australia
/'roprierary /.rd. ( !946) V.l..R. 339 (C. Sup. Viet.) .................................................... 14. 19
l>OCTIUNE
CCHt 1'.-A. '/he lutei'J!/'<'Ialion of' Legislation in Canada, 3'd ed.
(Toronto: C arswcll. 2002) .................................................................................................. 27
HANDA. Sunny, ( 'opyrig/11 l.mr in Canada (Toroll!o: Bu!terworths,
2002) ...... ' ....... ' .. ' ... ' .. ' ' ... ' ' .. ' ' ... ' .. ' ' ... ' ..... ' ................................... "" ...................................... 17
HITCHCOCK. l'.D .. Copying and Authorization" (1983), 67
C.P.R. (2d) 17 .............................................................................................. 9, 10, 17, 18, 32
LADDIE. Sir Hugh ct a!.. 'I'll<' Modem Law ol Copyright and Designs,
3 rd cd. (London: 13 uttcrworths, 2000) ............................................................................... 34
McKEOWN. JohnS., Fox Canadian Law <!lCopyright and Industrial
Designs, 3'd cd. (Toromo: Carswell, 2000) .......................................................... 5, 9-11,32
NIMMER, M. and D. NIMMER, Nimmer on Copyright (San Francisco:
Matthew Bender, 2003) ............................... , ............................................................... 56, 57
SULLIVAN, Ruth, Driedger on the Com/ruction of Stalutes, 3'd ed.
(Toronto: Buttcrworths, 1994) .......................................................................................... .48
VA VER, David, Copyright Lall' (Concord: Irwin Law, 2000) .......................................... 66
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Service of a True Copy Hereof
Admitted this 9'h day of
September, 2003.
For GOWLING LEFLEUR HENDERSON
&ob'
7 {?P
Ottawa Agents for the Appellant/Respondent on
Cross-Appeal
Service of a True Copy Hereof
Admitted this 9
1
h day of
September, 2003.
N LADNER GERVAIS LLP
Agent for the Intervener, the Federation of
Law Societies of Canada
Service of a True Copy Hereef
Admitted this 9
111
day of
September, 2003.
F'}i 0 SER, HOSKIN & HARCOURT
L'..
Co-Counsel and Ottawa Agents for the
Respondents/ Appellants in Cross-appeal
Service of a True Copy Hereof
Admitted this 9
1
h day of
September, 2003.
For McCARTHY TETRAULT LLP
v,'t\\ c \ ( n .,;.,.C
Agents for the Interveners, The Canadian
Publishers' Council and the Association of
Canadian Publishers
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