Supreme Court of Canada, CCH Canadian Ltd v Law Society of Upper Canada (LSUC), 2004 SCC 13

(1) The LSUC operated a library, and was accused of copyright infringement by providing photocopying services to its patrons. The Supreme Court ruled that the LSUC did not infringe copyright because its dealings with the claimants’ work were for the research purpose of its patrons and was fair. The courts will consider six factor to determine whether a dealing is indeed “fair”: (i) the purpose of the dealing; (ii) the character of the dealing; (iii) the amount of the dealing; (iv) the nature of the work; (v) available alternatives to the dealing and (vi) the effect of the dealing on the work (para 53).

(2) Further, the Court held that a finding of authorization of infringement requires proof that the intermediary has done something beyond providing a neutral technology that could be used for copyright infringement. That is, it must be shown that the intermediary acted in a way that gave approval to, sanctioned, permitted; favoured, or encouraged the copyright infringement (para 38). Therefore, the LSUC was not liable for authorizing infringement by virtue of providing photocopiers. The Court further stated that even if an intermediary did authorize the reproduction of copyrighted materials, there is a presumption that it did so in compliance with the law. However, this presumption is rebuttable where there is a relationship between an employer-employee or other similar relationship between the authorizer and the accused or the authorizer has a degree of control over the accused’s actions (Ibid).