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RIDA 203 | 01-2005

Doctrine

Copyright in Canada : an update after CCH

GERVAIS, Daniel

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Début de l'article :

The decision handed down in 2004 by the Supreme Court of Canada in CCH Canadian v. Law Society of Upper Canada has changed Canadian copyright law in three ways, the first being in relation to the fundamental notion of originality which the Court places between the extreme that defines originality as the mark of the author’s creativity, on the one hand, and the British/Australian extreme of the author’s skill and labour, on the other. The “test” adopted by the Supreme Court is that of skill and labour but only if they are neither trivial nor mechanical. This test is close to the one defined by the United States Supreme Court in the famous Feist case. Secondly, with regard to the notion of authorisation, the Court held that an authorisation to infringe could be active or passive. The mere fact of making available technology that can be used to infringe copyright but can also be used legally does not breach the Canadian law. Lastly, on the subject of the notion of fair dealing, which is the main exception to the author’s exclusive rights in Canadian law, the Court adopted a non-exhaustive list of six criteria for determining whether or not a dealing that has not been authorised by the author is fair. The notion of “research”, forming one of the cases of fair dealing set out in the Copyright Act, has been defined broadly and liberally.