 Let's now look in detail at the CCH and Law Society case. So this is the case in which the Supreme Court sets out the legal test for fair dealing. This case involves the Law Society of Canada, which is the body which governs the legal profession in Ontario. The Law Society maintains and operates a reference and research library called the Great Library at Osgoode Hall in downtown Toronto. One of the services that the Great Library provides is called a Custom Photocopy Service. So what that service does is that if you're a Law Society member, let's say you're a lawyer, no matter where you're located in Ontario, you can contact one of the librarians at the Great Library and they can look up something for you. Let's say it's a case or a specific article and they can photocopy that case or article and send it to you. They can either deliver it in person, presumably if you're in the Toronto area or downtown area, or they can send it by mail or send it by fax. The various publishers that the library has materials from, including CCH Canadian, had some serious objections to the service. They took the position that the service constituted copyright infringement, so they sued the Law Society for copyright infringement. One of the legal issues that the Supreme Court considered in this case was whether the Law Society's dealings with the publisher's works were considered to be fair dealing under the Copyright Act. In setting out the applicable law here, the Supreme Court first stated that the fair dealing exception is a user's right and that in order to maintain the proper balance between the rights of a copyright owner and user's interests, that fair dealing exception should not be interpreted restrictively. Then the court more specifically set out the test that we've already explained in the previous slide to have fair dealing. The first step is to look at the purpose of the dealing. Does it qualify for one of the purposes of research, private study, criticism, review, news reporting, education, parity, or satire? And then the second step is to determine whether or not that dealing is fair. And then the court set out the six different factors in assessing whether a dealing is fair. The court then explained how these different factors are applied or what they mean. The first factor in determining fairness is the purpose of the dealing. So the purpose goes back to the purposes that are set out for fair dealing under the Copyright Act, which are namely research, private study, criticism, review, or news reporting. So those were the purposes that were set out in the Copyright Act at the time of this case. Subsequently and more recently, there have been a few additional fair dealing purposes added to the Copyright Act, which are education, parity, or satire. But the court also provides a bit more color in terms of applying this factor of purpose of the dealing. So they made other comments such as, you know, if research is done for commercial purposes, it may not be as fair as research done for charitable purposes. The second factor in determining fairness of the dealing is the character of the dealing. So the court pointed out here that if, let's say, multiple copies of works are made and they are widely distributed, that would likely be unfair. So in contrast, if a single copy of work is used for a specific legitimate purpose, then that's likely to be fair to be fair dealing. And if the copy of the work is destroyed after it's used for its intended purpose, that also may help lead to a finding of fairness. And in some instances, looking at the custom or practice in a particular trade and industry may help to determine whether or not the dealing is fair. The third factor looks at the amount of the dealing. So usually one rule of thumb that people apply is the 10% rule, that if you are copying less than 10% of a book, let's say, that usually would qualify for a fair dealing. So the Supreme Court here says that if the amount taken from a work is trivial, then it's likely to be fair dealing. But the court also says that in some situations it may be fair to copy 100% of a work. One example is if you are writing an article to criticize or review a photograph, you would be able to fairly reproduce 100% of the photograph in your review, and that would likely be considered fair. Alternatives to the dealing looks at whether or not there is a non-copyright equivalent of the work that could have been used instead of the copyrighted work. The fifth factor looks at the nature of the work. So that can be a number of different things. Some of the possibilities that the court commented on were if a work has not been published, the dealing may be considered fair in that the reproduction could lead to a wider public dissemination of the work. In contrast, if the work is considered to be confidential, then copying the work in terms of the dealing could be considered to be unfair. The sixth and last factor is the effect of the dealing on the work. What specifically this looks at is the effect of the dealing on the market for the copyrighted work. In other words, will that copying take away legitimate sales of the copyrighted work? So when the court applied that law to the facts, they applied all five factors to determine fairness, but they first dealt with the first step of determining whether or not the purpose of the dealing fell within one of the purposes that are set out in the Copyright Act. They concluded that the purpose here was for research, and that research should be interpreted in a liberal and broad fashion so as not to unduly constrain users' rights. So specifically, they said that research for the purpose of advising clients, giving opinions, arguing cases, preparing briefs, factims is nonetheless research, and it doesn't matter that lawyers are carrying on the business of law for profit in the conduct of that research. So then the court moved on to the second step of the analysis in determining whether or not the dealing was fair by applying these six different factors. In finding that the law society's dealing was fair, the court focused on the facts that the access policy that the law society operated under in providing this service states that not all requests for copying or for access to materials will be honored, and that request does not appear to be for the purpose of research, criticism, review, or private study. Copy will not be made, and that also that this access policy limits the amount of the work that will be copied, and that if the request exceeds what might typically be considered reasonable, then the librarian has the right to refuse to fulfill a request made by a law society member.