Abstracts
Panel 1: Recounting the CCH Litigation
Forseeable or Fluke: How Did User Rights Become the Cornerstone of the CCH Decision?
Michael Geist – Canada Research Chair in Internet and E-Commerce Law, Faculty Member at the Centre for Law, Technology, and Society,
Full Professor, University of Ottawa Faculty of Law, Common Law Section
The CCH decision stands as perhaps the most important copyright ruling in the history of copyright law in Canada. The unanimous decision not only touched on several critical copyright issues but examined the very foundations of the law. The case is best known for the elevation of “user’s rights”, which rapidly emerged as a key doctrine both in Canada and abroad. But was the inclusion of user’s rights foreseeable or merely a legal fluke?
Despite its importance, the historical and litigation records suggests that the issue barely surfaced in pleadings or oral argument. Fair dealing was an important part of the case, but early arguments emphasized the notion of “public rights” rather than user rights. The Federal Court of Appeal picked up on user’s rights with respect to a fair interpretation of copyright exceptions but did not consider the notion of user’s rights as a right itself. User’s rights were only invoked in the very last moments of reply during the Supreme Court of Canada oral argument and not as a core element of the Law Society’s argument.
This paper will examine the historical record to better understand the limited role that user’s rights played in the development of the decision. It will seek to understand why counsel did not emphasize the issue and – even more – what may have led the Supreme Court to turn to user’s rights as an essential part of its ruling.
What Everyone Got Wrong With CCH
Andrew Martin – Former Executive Director, Access Copyright, Vice-President, Lancaster House Publishing
The SCC decision in CCH Canadian v Law Society of Upper Canada was fundamentally wrong in several respects. The plaintiffs should have framed the issues better and (easy to say with hindsight) tried harder to avoid litigating when the downside was so hazardous. But the SCC wilfully distorted the legislation and invented a fix that fueled the decline of educational publishing in Canada. The Government of Quebec had the cultural foresight and the political will to steer schools and colleges in their province in a very different direction to that chosen by the Rest of Canada, which is now an outlier in the common law copyright world. Publishers have adapted, or rather the multinationals have, but the Canadian companies struggle. What should happen next?
Panel 2: Setting the Stage: CCH ’s Legacy and Unexplored Territory
The Mixed Legacy of CCH
Ysolde Gendreau – Full Professor, University of Montreal Faculty of Law
It is rare that a court decision should provide an equally important precedent for two legal issues, but such is the case with the Supreme Court decision in CCH. The definition of originality, a fundamental notion in copyright law, and the characterisation of exceptions as users’ rights continue to resonate today. Both have also become particularly relevant in the contemporary debate on artificial intelligence. While the impact of the interpretation of originality provides a fairly clear guidance for the determination of what should and what should not be protected by copyright in this context, the “new” take on exceptions creates a more problematic background in which to envisage the application of copyright law.
La Déliquescence de L'oeuvre et le Droit D'accès
On dit parfois qu'une mauvaise cause fait un bon droit. Ce qui est certain, c'est que transformés en commandements généraux, les principes prétoriens dégagés dans une espèce particulière ne font pas toujours bonne politique. Et il y a quelque chose d'imperciptiblement dérangeant dans l'affaire CCH. Ne serait-ce parce qu'elle réunit la grande communauté épistemologique du monde juridique : juges et avocats naturellement mais aussi justiciable, auxiliaires de justice, traducteur, rédacteurs juridiques, etc. Un droit fait dans l'entre-soi ! Ceci devrait interpeller. Malgré tout, l'affaire CCH est aujourd'hui un incontournable des leçons sur le droit d'auteur. L'arrêt contient dans son texte un grand nombre de prononcés élémentaires concernant le droit d'auteur (originalité, exception d'utilisation équitable, reproduction, communication au public, etc..). Mais la cause recèle aussi une force dont on a peut-être pas véritablement mesuré la portée : elle fait prévaloir la valeur informationnelle d'une oeuvre sur sa valeur esthétique ou créatrice. C'est la déliquescence de l'oeuvre au profit de l'information. Le droit d'auteur se retire devant un droit d'accès à l'information. La cause porterait alors déjà en elle les arguments que fait valoir l'industrie de l'intelligence artificielle pour s'affranchir du droit d'auteur.
“Other” User Rights Ignored? The Legacy of CCH and the Disability Exceptions
Rowan Meredith – SJD Candidate, University of Toronto Faculty of Law
When CCH declared the exceptions to the Copyright Act to be “user rights”, it set the stage for a wide, rights-based reading of these exceptions. Since the decision in CCH, several Supreme Court of Canada decisions have followed CCH in finding broad user rights in the context of the Section 29 fair dealing exceptions; however, little court attention has been paid to interpreting the other, non-fair dealing exceptions to copyright as user rights. Perhaps as a result of this, institutional users such as libraries continue to have unnecessarily restrictive policies when it comes to implementing some of the other user rights under the Copyright Act.
This paper will address the legacy of CCH in the context of the Section 32 disability exceptions to copyright infringement. I will argue that, in light of the decision in CCH and the subsequent case law, the Section 32 disability exceptions must be given “a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained”:
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First, I will argue that the Section 32 restriction on copying works that are “commercially available” should not be interpreted so as to require onerous research by librarians or disabled users to determine whether a work is available in a usable format.
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Second, I will argue that the language permitting copying by “a person acting at the request of” a person with a perceptual disability as set out in Section 32 includes copying by corporate persons including for-profit entities.
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Third, I will argue that even in the context of the creation of accessible copies of works for persons with perceptual disabilities, libraries can still turn to fair dealing to permit copying – for example, to permit the creation of accessible copies of cinematographic works, which are excluded from Section 32.
As part of my analysis, this paper will address the statutory nature of copyright law, specifically in the context of the 2016 amendments implementing the Marrakesh Treaty and expanding the Section 32 disability exceptions. I will argue that, given that these amendments were made post-CCH and after the “copyright pentalogy” which further expanded on the user rights doctrine adopted in CCH, it is particularly appropriate to assume that Parliament intended these exceptions to be interpreted in a large and liberal manner consistent with CCH. Parliament’s legislative process is part of an iterative process that works in close cooperation with the common law; if Parliament had instead intended for the Section 32 disability exceptions to be read narrowly in a post-CCH world, it would have so specified explicitly in the amended provision. As a result, I will argue that the Section 32 disability exceptions should be interpreted far more broadly than libraries and other risk-averse institutions appear to be interpreting them at present.
Past, Present, and Future: Fair Dealing amidst Canadian Identity
Meera Nair – Copyright Officer, Northern Alberta Institute of Technology
“The past is never dead; it’s not even past.” William Faulkner (1897-1962)
In 2004, Canada’s highest court unanimously agreed that the exception of fair dealing was a “user’s right.” Yet stiff resistance to that right has continued for over twenty years; despite additional supportive fair dealing decisions from the Supreme Court and lower courts, naysayers persistently frame fair dealing as an affront to Canadian creators. A challenge to overcome remains by way of fair dealing’s prior history, where copyright was continually tied to not only a presumption of absolute control but also to the protection of a deemed-Canadian identity through literature, art, and music.
In a 1932 issue of Bench and Bar—the National Legal Newspaper, four seemingly disparate articles combine to provide some insight to Canada’s historical and ongoing challenges regarding robust recognition of the value of fair dealing. The first article addressed the appointment of the Honourable Eugène Réal Angers to the Exchequer Court of Canada; the second celebrated the 100th anniversary of the Law Society of Upper Canada convocation ceremonies wherein their aim was to “cherish British traditions [and] uphold British justice…”; the third discussed procedure with respect to Quebec’s Civil Law; and the fourth article marked the passage of the Statute of Westminster, which ended (for the most part) official British control over Canada’s capacity to set its own laws.
The connecting tissue among these articles is the first case regarding fair dealing in Canada, Zamacois v. Douville and Marchand (1943). A case that offered much promise to Canada, in terms of application of fair dealing, recognition of Canada’s bi-jural and bi-cultural nature, and the principle that copyright must operate as a set of limited rights. Yet the British traditions so admired at the time would effectively limit the potential of that decision. This paper proceeds in three parts: (i) a brief account of Canada’s nineteenth century difficulties in establishing a system of copyright that would support the domestic publishing sector; (ii) an illustration of the contrast between the English and French publishing sectors in Canada and the copyright implications thereof; and (iii) exploration of Zamacois v. Douville and Marchand (1943) as decided by Justice Eugène Réal Angers. Despite the clarity of his reasoning at the time, the potential of his work was never capitalized on in the twentieth century.
Panel 3: The Impact of CCH on Libraries and Educational Institutions
CCH and the Evolution of Fair Dealing in Higher Education
Jennifer Zerkee – Copyright Specialist, Simon Fraser University Copyright Office
CCH directly paved the way for post-secondary institutions in Canada to manage copyright in-house, providing a viable alternative to increasingly expensive yet less and less valuable institutional licences from Access Copyright. This case 1) affirmed that a library could deal fairly with copyright-protected work on behalf of a patron, 2) provided factors to give structure to an analysis of whether a dealing is fair, and 3) confirmed that fair dealing is a user’s right and requires a “large and liberal” interpretation. Additionally, in allowing that the Great Library could “rely on its general practice to establish fair dealing” rather than “adduc[ing] evidence that every patron uses the material provided for in a fair dealing manner” (para. 63), CCH provided support for the approach taken in the fair dealing guidelines in use across the education sector in Canada since 2012. However, despite the solid grounding provided by CCH (and reinforced by the Pentalogy cases as well as the York case), the publishing sector continues to challenge the legality of the ways in which post-secondaries copy and use materials for teaching.
In the current increasingly-digital age, fair dealing is relied on much less at the institutional level than it was in the past. The vast majority of academic libraries’ collections are now in electronic formats and governed by licence terms that typically permit access and copying for teaching and research; these licences are paid for by the institution or its library. Textbooks now come in interactive formats that students subscribe to individually. Therefore, there is rarely a need anymore for additional permission or licensing to copy teaching materials. However, fair dealing is still incredibly valuable to individual instructors, researchers, and students, allowing them to draw from a diverse range of current and historical scholarly and non-scholarly sources in teaching and research, and include a wide variety of evidence in theses and other research outputs.
CCH continues to impact many aspects of the everyday work of copyright administration in Canadian post-secondaries. This presentation will explore the evolution of fair dealing in higher education, address the challenges being raised by the publishing sector, and explore where we might be headed.
The Impact of CCH on Teaching Copyright to Information Professionals
Jean Dryden – Adjunct Professor, University of Toronto Faculty of Information
The impact of the landmark decision in CCH Canadian Ltd. v Law Society of Upper Canada extends well beyond the copyright bar. Practitioners in the information professions have also been affected. Librarians and archivists regularly deal with copyright when answering questions from patrons and colleagues, developing institutional policies, and/or advocating for better copyright law. The CCH decision changed how copyright is taught to these practitioners. This paper draws upon long experience in teaching copyright within continuing education programs, and to master’s students in professional degree programs. It looks particularly at the concept of originality, the transformation of exceptions from defenses to users’ rights, and the clarification of fair dealing. Curriculum content and teaching materials obviously changed to cover new content, but CCH also resulted in new resources to support teaching, such as the development of institutional fair dealing guidelines and hiring of copyright librarians. Teaching copyright in the information fields provides a unique perspective from which to explore the evolution of content, materials, and learners’ reactions.
Taking Users' Rights to the User: Policy Space Occupied by Librarians
Victoria Owen – Speical Advisor Accessibility of Information; Special Projects Librarian Collections and Accessibility of Information, University of Toronto Faculty of Information
Alexandra Kohn - Copyright Librarian, McGill University
Librarians and information professionals fulfill the state’s responsibility in serving the public interest with regard to access to information, and, in doing so, they must understand copyright: the rights of the author or rightsholder, and the rights of the user in the digital and print environments. This presentation will cover the societal role of librarians and information professionals and their responsibility to articulate and continuously clarify the boundaries of exceptions and limitations to creator rights, to respect hard boundaries of rights where they exist, to make use of ambiguity in the law to fully occupy the public policy space created for users’ rights, and to express the associated rights, such as access to and preservation of works for society’s benefit.
Who’s the Fairest of them All? Libraries and Fairer Dealings Still 20 Years After CCH
Mark Swartz – Scholarly Publishing Librarian, Joseph S. Stauffer Library, Queen’s University
Bita Amani – Professor of Law, Queen’s University Faculty of Law
Over the past twenty years, there have been seismic shifts in market practices that have sought to narrow the reach of the SCC access-oriented dicta in CCH. Publishers have pivoted from sales to licencing of services to extract excessive value from copyright’s monopolistic exclusivities while bypassing the liberal and intentional provisioning of user rights developed since then in the publics’ interests. In this presentation, we will examine how the shift in industry practices has affected libraries and their users, highlighting concrete examples of how libraries' control over their collections has been systematically diminished. This has led to a coalition of legal and more questionable practices emerging as remedial responses, with various "access allies" mobilizing to uphold copyright's intended balance. Libraries remain the fairest of them all in ensuring access to copyright works and the future of Canadian copyright law’s public interests is contingent on maintaining their use allowances.
13 Years Later: Assessing Access Copyright's Best Case
Graeme Slaght – Acting Head, Scholarly Communications and Copyright Office, University of Toronto Libraries
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Our overall project involves the empirical examination of a set of evidence that was part of the "copyright case of the century," submitted when Access Copyright sued York University for the non-payment of a tariff certified by the Copyright Board of Canada in 2012. Our study examines a list of 87 allegedly infringing works, which were assembled by Access Copyright as evidence of York's obligation to pay Access Copyright. These alleged infringements were never litigated at the trial. Our study examines these works, whether they would have constituted copyright infringement in 2011/12, and how they would be made available today. Additionally, we have examined another set of works gleaned from a joint University of Toronto and Access Copyright sampling of learning management system reproductions from the same period. We will offer our findings and discuss implications.
Panel 4: External Legal Frameworks Actualizing or Undermining Copyright and User Rights
Fairness, Human Rights, and Copyright Law: The Future of Fair Dealing
Graham Reynolds – Associate Professor, Associate Dean, Research and International, University of British Columbia Peter A. Allard School of Law
This presentation will consider the impact of the adoption of a human rights-based approach to copyright on Canada’s fair dealing defence. It will begin by describing a human rights-based to copyright, and will explain why this approach should be adopted by Canadian courts. Second, it will consider the extent to which a human rights-based approach is already reflected in Canada’s Copyright Act. Third, it will consider the impact of a human rights-based approach on Canada’s fair dealing defence. In particular, it will consider how the fairness analysis might need to be modified to take into account human rights values.
Peut-on renoncer à l`utilisation équitable? (Can Fair Dealing be Waived?)
Mistrale Goudreau – Faculty Member at the Centre for Law, Technology, and Society, Full Professor, University of Ottawa Faculty of Law, Civil Law Section
En 2004, la Cour suprême du Canada a déclaré que l'utilisation équitable constituait un « droit des utilisateurs ». Des commentateurs ont analysé la relation entre ce droit et les droits fondamentaux, certains avançant que les droits des utilisateurs constituent bel et bien des droits de la personne1. Par ailleurs, les parties prenantes ont tenté de définir contractuellement (ou unilatéralement) la portée des utilisations permises. Cela soulève une question : peut-on renoncer à l’exception d’utilisation équitable ? Le droit canadien reconnaît qu'il existe des circonstances dans lesquelles un droit ou une liberté fondamentale peut faire l'objet d'une renonciation contractuelle2. Cependant, depuis 2004, les tribunaux et les législateurs ont introduit des distinctions et imposé des conditions à la validité d'une renonciation, selon la nature et la portée du droit. Ces développements jettent-ils un nouvel éclairage sur la nature des droits des utilisateurs reconnus par la Loi sur le droit d'auteur?
In 2004, the Supreme Court of Canada declared fair dealing and other exceptions to copyright infringement to be "users’ rights." Commentators have analyzed the relationship between users’ rights and human rights, with some arguing that users’ rights do indeed constitute human rights1. However, given the open-ended nature of the fair dealing exception, stakeholders have attempted to contractually (or unilaterally) define what constitutes a legitimate use of copyrighted works. This raises the issue of relinquishment of users’ rights. Canadian law recognizes that there are circumstances in which a fundamental right or freedom may be contractually waived. However, since 2004, courts and legislators have introduced distinctions and imposed conditions on the validity of a waiver, depending on the nature and scope of the right in question. Do these legislative and jurisprudential developments shed new light on the nature of users’ rights recognized by the Copyright Act?
How Does Fair Dealing Fare in Contractual Relations After CCH?
Lucie Guibault – Full Professor, Director, Dalhousie University Schulich School of Law, Law & Technology Institute
The Supreme Court of Canada's groundbreaking declaration in CCH Canadian Ltd v Law Society of Upper Canada that "[t]he fair dealing exception, like other exceptions in the Copyright Act, is a user’s right" has remained unmatched in the countries of Europe or the United States. While the Court’s statement on the status of the fair dealing exception has offered continued guidance in the assessment of the respective rights of copyright owners and users in infringement cases, it has been invoked in less than a handful of cases involving the intersection between fair dealing and restrictive contract clauses. One of these cases was recently examined by the Federal Court of Canada in the Blacklock’s Reporter v Canada.
Two decades after the CCH Canadian decision, the question persists whether the qualification of fair dealing as a users' right is strong enough to allow it to prevail over a contract clause that prevents acts that would amount to fair dealing. Can the user of a work escape liability for disregarding the term of a restrictive contract, based on the argument that they are exercising their right to make a fair dealing of the work? What about other exceptions recognized under the Copyright Act? Could a similar defence be put forward? The answer to these questions hinges on the analysis of two intertwined sets of legal issues: the weight to give the respective rights of the owner and user under Canadian copyright law and the possible limits to the parties’ freedom of contract.
This paper explores the validity and strength of a defence of fair dealing in the context of the contravention of a user licence that purports to prohibit acts of fair dealing. Where the Copyright Act is silent on the mandatory character of the fair dealing exception, the paper analyses the nature of the respective rights of the owner and user from the perspective of the copyright regime’s intended goals in light of the Supreme Court case law. Does the judicial declaration that fair dealing is a users’ right suffice to infuse a mandatory character into it? How did the Court rule in the Blacklock’s Reporter case? As the facts of this case showed, a parallel can be drawn with the way the Copyright Act addresses the intersection between copyright exceptions and technological protection measures. This comparison may shed light on the assessment of the weight that should be given to these exceptions and the fair dealing defence inside contractual arrangements.
Next, the paper considers the principle of freedom of contract under Canadian common law. It examines how the principle’s application may influence the fate of a fair dealing defence against a claim of breach of contract and copyright infringement. What limits does Canadian common law recognize on the principle of freedom on contract? Do circumstances exist where freedom of contract might bend to a defence of fair dealing? Does the nature of the contract, i.e. negotiated licence or end user standard licence, influence the outcome? Does the category of user, whether professional or consumer, influence the outcome?
The nature of copyright exceptions inside contractual arrangements is a timeless issue that has received, particularly in Europe, considerable doctrinal attention and some legislative clarity, even if courts have not been consulted much. Foreign solutions and opinions are used as illustration in this paper for discussion in the Canadian context.
To Actualize Users’ Rights: Guidelines If Necessary but Not Necessarily Guidelines
Howard P. Knopf – Retired Lawyer & Policy Provacateur
This paper will examine generally what led up to the Supreme Court’s CCH decision and the subsequent road to its York ruling. Additionally, brief comparative references will be made to the law in other common law jurisdictions, such as the USA, UK, Australia and New Zealand, as well as the approach in the European Union based more on civil law.
More particularly, this paper will examine the evolution of copyright “guidelines” in educational institutions in Canada, with comparative references to other jurisdictions. Analysis and commentary will be provided regarding such issues as:
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A critical review of various Canadian fair guidelines following CCH and particularly following the 2012 Supreme Court “pentalogy”
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Whether guidelines should be more prescriptive or descriptive
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A comparison of “guidelines” v. “codes of best practices”
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The “safe harbour” concept
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What does “substantial” mean?
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The role of risk aversion in the educational context
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What is the worst thing that could possibly go wrong in the university context
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What is the appropriate nature of involvement of university administrators and librarians the oversight of copyright?
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The role of counsel in the formulation of guidelines
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Whether some universities are effectively becoming security guards for copyright owners rather than promoters and defenders of the “encouragement of learning”
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Whether contracts can override users’ fair dealing rights
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Whether educational copyright guidelines should deal with related issues, such as plagiarism and the use/abuse of AI
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Whether educational guidelines may or should effectively amend the Copyright Act by becoming part of a “common law” of copyright
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Relevant jurisprudence other than from the Supreme Court of Canada
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The role of Access Copyright
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Government fair dealing practices and payments over the years
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The effect of the 2012 Copyright Modernization Act and the inclusion of the word “education” in Section 29 of the Copyright Act
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Technical Protection Measures (TPMs) and Fair Dealing
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Does the Copyright Act need to be amended, and if so, how?
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Guidelines if necessary, but not necessarily guidelines?
Panel 5: CCH’s Legacy on the International Stage and Lessons from Abroad
CCH Canadian as a Compass: Navigating GenAI related Copyright Litigations in India
Arul George Scaria – Professor of Law and Co-Director of the Centre for Intellectual Property Research and Advocacy, National Law School of India University, Bengaluru
CCH Canadian had remarkable influence in the evolution of originality jurisprudence under Indian copyright law. In Eastern Book Company v. D. B. Modak [2008(1) SCC 1], the Indian Supreme Court had categorically adopted the skill and judgment test laid down in CCH Canadian for determining originality under Indian copyright law. Now, almost two decades later, it may be useful for the Indian courts to go back to the CCH Canadian judgment in a different context – resolving the GenAI related copyright infringement questions in India. GenAI poses many new questions, but the user rights framework evolved in CCH Canadian can act as a guiding light in addressing many of those complex questions. This paper explores the potential applications as well as limitations of using the CCH Canadian framework in the context of an ongoing GenAI related case in India - ANI v. OpenAI [Delhi High Court, CS(COMM)1028/2024].
​South Africa’s Ongoing Copyright Amendment Saga: Bringing Balance to Colonial Copyright Laws
Tobias Schonwetter – Associate Professor, University of Cape Town Faculty of Law, Director, IP Unit and the iNtaka Centre for Law & Technology
This presentation reflects on the decade-long struggle in South Africa to reform, contextualise, de-colonise and future-proof the country’s outdated copyright legislation. While certain provisions of the 1978 Copyright Act have already been deemed unconstitutional, the proposed expansion of copyright exceptions and limitations in the Copyright Amendment Bill - including a transition from a fair dealing system to a fair use-based hybrid system - has recently also been scrutinised by South Africa’s Constitutional Court on the President’s request. The presentation seeks to elucidate (a) how the reform initiatives in South Africa and the expansion of user rights, particularly, can be traced back to the CCH Canadian v. Law Society of Upper Canada decision, and (b) how South Africa’s arduous process of legislative change in this domain offers valuable insights for other countries.
Global Asymmetries in Copyright Enforcement: Revisiting CCH through the Lens of Africa’s Digital Music Economy
Kow Abekow-Wonkyi – PhD Candidate, University of Ottawa Faculty of Law
As African rightsholders struggle to capture full economic value in the digital transition, questions about platform accountability and intermediary liability become central. This presentation draws on the legacy of CCH Canadian Ltd. V Law Society of Upper Canada 2004 SCC 13 [CCH], particularly its narrowing of liability for authorizing infringement, which ensures intermediaries are not held strictly liable for users’ conduct. This principle has formed a strong foundation in Canadian copyright jurisprudence and has globally influenced deeper insights into how liability is conceptualized for online platforms. Building on this foundation, the presentation examines how this principle might apply or misapply in the African context. Key questions include: can limiting intermediary liability support innovation and access in under-regulated markets, or does it risk entrenching impunity where enforcement institutions are already weak? And how might doctrines rooted in well-resourced legal systems distort accountability dynamics when transposed into environments pervasively grappling with robust copyright infrastructure, licensing networks and enforcement tools?
From the perspective of UN-classified less-resourced jurisdictions, the presentation explores how intermediary protection and liability frameworks in Europe and Canada might inadvertently amplify enforcements gaps if embraced without any critical outlook. The Supreme Court in CCH limited liability by interpretating “authorization” to exclude merely facilitating the means of infringement, focusing instead on whether the intermediary sanctioned or approved the infringing act. Although enounced in the context of a library photocopying case, the principle now influences digital intermediaries’ policies more broadly. In many African contexts, internet platforms operate in grey zones where CMOs and related institutions are inadequately placed to monitor usage and effectively collect royalties. These platforms may benefit from unauthorized uses without actively encouraging them and yet escape liability under a strict CCH lens. The informal and communal nature of music-making and performance in Africa, which is sharply contrasted with Western copyright notions of individual authorship and exclusivity, coupled with weak repertoire documentation, and fragmented data systems, creates a scenario where unauthorized use is widespread with little enforcement. It thus invites a reflection on whether the same liability threshold should apply in contexts with vastly different institutional capacities. This becomes concerning particularly given that African Music, which is key in the continent’s cultural and creative expression, already lacks strong representation on mainstream platforms, owing to, for instance, AI algorithmic recommendation systems that are primarily trained on consumption patterns from high-revenue Western markets thereby assuming a bias that reinforces imbalances.
Inspired by comparative insights from EU’s Article 17 CDSM Directive, and Canada’s Notice -Notice regime, this presentation argues for context-sensitive copyright systems that address entrenched global asymmetries. While CCH limited intermediary liability by narrowly interpreting “authorization and infringement”, these subsequent legal developments reflect efforts to recalibrate intermediary obligations in response to the complexity of online infringement. Article 17 places affirmative licensing and takedown duties on platforms, signaling a shift toward stricter forms of platform accountability. Canada’s Notice-and Notice regime, on the other hand, preserves elements of CCH’s balance by engaging intermediaries without over-enforcement. Indeed, these frameworks operate within an environment that are context-conducive, as benefitting from multi-territorial systems, metadata infrastructure and institutional capacity – conditions often absent in African contexts. The presentation uses these models as comparative benchmarks to reflect on what balanced, localized intermediary liability could look like in structurally weaker contexts.
At the African regional level, the African Continental Free Trade Area’s (AfCFTA) Protocols on Intellectual Property and Digital Trade offer a budding platform for harmonizing copyright standards and supporting cross-border licensing framework for CMOs. However, their success will depend on whether they incorporate mechanisms that reflect African socio-economic realities, including informal creative economies, and limited enforcement capacity.
Ultimately this presentation argues that the future of copyright in the face of AI, globalization, and expanding platform power will require more than jurisdiction-specific responses. Revisiting CCH from the African viewpoint offers a chance to reimagine copyright systems that are balanced and attuned to systemic inequalities, rather than reinforcing them.
User Rights in the Digital and Algorithmic Society - What We Can Learn from CCH
Martin Senftleben – Professor of Intellectual Property Law, Director, Institute for Information Law, Amsterdam Law School
This contribution will compare the user rights approach taken in CCH with the user rights approach in the EU. It will show that we need fully developed user rights (better than in the EU) to tackle current copyright issues ranging from GenAI development to GenAI systems producing literary and artistic content, including AI-assisted user-generated content. After identifying the different facets of user rights in the current digital and algorithmic environment, the analysis will culminate in the question whether appropriate guidelines can be derived from the milestone decision in CCH Canadian v. LSUC.
User Rights in the Digital and Algorithmic Society - What We Can Learn from CCH
During the first Lula’s Presidency in Brazil (2003-2006), the composer and singer Gilberto Gil assumed the Ministry of Culture with the mission to build cultural policies that foster diversity and non-hegemonic, local and traditional forms of expressions and art, considering the economic and symbolic dynamics, in the context of upcoming digital technologies and globalization. Copyright was to be now considered under the broader cultural policies being discussed and not simply as a market good. That was the first shift on how to rethink copyright. The first term was basically dedicated to build the political arguments, social participation and organizational structures, including budget and personal.
Panel 6: Copyright in the Age of Language Models and Generative AI
User Rights in Training Data
Gregory Hagen – Associate Professor, University of Calgary Faculty of Law
CCH Canadian Ltd. v. Law Society of Upper Canada is well-known for embracing the doctrine that fair dealing is a user’s right, as are the other exceptions to infringement in the Copyright Act. In CCH, photocopying a legal judgment was considered to be an exercise of a lawyer’s right to fairly deal with legal materials for legal research purposes. The user right doctrine was further developed in later Supreme Court of Canada cases and is closely related to its doctrines of balance and technological neutrality in copyright law. To what extent would CCH apply today to training an AI model on published legal judgments or other copyrighted works? Absent a clear answer as to whether the reproduction of copyrighted works to train AI models is fair dealing, some might call for the creation of a limited exception to copyright infringement for training AI using copyrighted works and other subject matter. However, the idea that the reproduction right is engaged when training AI models is often too quickly assumed. Whether (and if so, how much) reproduction occurs in AI model training depends upon exactly what happens in a multi-step training process, a process that may differ between AI model training projects and differ over time. Whether reproduction occurs in training also depends upon the interpretation of “reproduction” as a term of art in copyright law and the nature of the “intelligence” that is trained. A human agent does not engage the reproduction right by merely reading, listening or viewing. The doctrine of technological neutrality would seem to imply that an artificial agent that is functionally equivalent to a human agent does not engage the reproduction right when learning either. If there is such an agent, merely assisting it to learn could be considered to be the exercise of a user right.
User Rights in the Age of Generative AI
​Peter Yu – Distinguished University Professor, Regents Professor of Law and Communication, Director,
Center for Law and Intellectual Property, Texas A&M University School of Law
Since the Supreme Court of Canada's 2004 decision in CCH Canada Ltd v Law Society of Upper Canada, the global copyright landscape has changed considerably. While a number of jurisdictions have transplanted, or considered the transplantation of, a fair use or user right regime from abroad, other jurisdictions have actively introduced express copyright exceptions to support text and data mining and the creation of parodies, satires, caricatures, and pastiche works.
In the past few years, the arrival of ChatGPT, Dall-E, Midjourney, Stable Diffusion, Copilot, and other generative artificial intelligence (AI) tools has also raised new questions among policymakers and commentators concerning the future development of copyright law. In the AI area, three sets of issues have dominated the policy and academic debates: (1) the eligibility of AI-generated creations for copyright protection; (2) the unauthorized use of copyright works to train AI models; and (3) the use of AI to support the protection, enforcement, or licensing of rights under copyright law.
This presentation examines the protection of user rights in the age of generative AI. It further explores the challenges and uncertainties surrounding such protection. The presentation concludes by interrogating whether the arrival of generative AI has raised new questions about the protection of user rights—and if so, what policy responses should be introduced to address these questions.
References:
Matthew Sag and Peter K. Yu, 'The Globalization of Copyright Exceptions for AI Training' (2025) 74 Emory Law Journal (forthcoming).
Peter K. Yu, 'Artificial Intelligence, Autonomous Creation, and the Future Path of Copyright Law' (2025) 50 Brigham Young University Law Review (forthcoming).
Peter K. Yu, 'Artificial Intelligence, the Law-Machine Interface, and Fair Use Automation' (2020) 72 Alabama Law Review 187.
Peter K. Yu, 'Fair Use and Its Global Paradigm Evolution' [2019] University of Illinois Law Review 111.
Towards A Creator-Friendly Copyright Regulatory Approach in the Era of Generative AI
Yuxiao Zhang – PhD Candidate Mc Gill University, Faculty of Law
As a milestone in the Canadian copyright law system, the CCH judgment referenced the Théberge to highlight copyright law’s dual objectives: to balance the just reward for creators and the public interest in disseminating and encouraging knowledge, with the latter referred to as the users’ right on some occasions. This expression places creators and users in the central position in copyright law. While the two identities are seemingly antagonistic under this binary expression, they can interchangeably be in one person. This paper limits its focus to creators, leaving the discussion around users for future research.
In the Generative AI (GenAI) era, creators are unusually silent and powerless in copyright conflicts. On the one hand, numerous individual creators’ works are used in the AI training without permission and compensation. On the other hand, despite several lawsuits filed by individual artists against AI companies, they are much less influential than cases involving big copyright exploiters, such as the ongoing case between the New York Times (NYT) and OpenAI. While copyright exploiters, such as publishers like the NYT, are often the center of attention in copyright issues, their goals are not aligned with the dual objectives expressed in CCH. Instead, exploiters mainly aim to profit from investing in copyright-protected works. This paper contends that while regulating GenAI-related copyright issues, copyright law should focus again on creators instead of the influential exploiters.
In the current NYT v. OpenAI, the NYT sides with creators against OpenAI for unauthorizedly training AI models with its articles. However, the NYT’s position is not always consistent with this anti-tech view. For instance, in NYT v. Tasini (2001), the NYT leaned towards the digital technological sector. In this case, the NYT licensed its freelance authors’ works, without either permission or compensation, for inclusion in electronic databases. The U.S. Supreme Court ruled in favor of freelance authors’ copyright privilege in digital publication. Regardless, the NYT insisted on only publishing the digital version of articles whose authors waived extra payment. The NYT’s polarized stances align in their pursuit of pecuniary goals, as copyright exploiters invest in creative industries primarily for financial gain. Based on the two cases, the first part of this paper examines the tensions among creators, exploiters, and technological actors in copyright law. In retrospect to history, this part first illuminates how publishers shaped copyright law in the name of authors, referencing early modern copyright laws in England, France, and the U.S. It further illustrates the entanglement between the copyright exploiter, who represents the existing copyright industry, and technological revolution, which fosters new industrial sectors in their times, such as the past recording technology and the Internet.
GenAI has uniquely transformed the creative process to a degree that prompts a creator-friendly approach to copyright regulation more urgent than ever. In 2023, a GenAI-generated painting won first place at the Colorado State Fair’s fine arts competition, demonstrating that GenAI works are no less creative than human-created works. Recognizing the creativity in GenAI works leads to the haziness around the issue of who these works’ creators are, a crucial question to answer before establishing the creator-friendly approach. The second part of this paper investigates the authorship of GenAI works divided into two forms: AI-assisted and AI-generated. While human contribution is still apparent in the former, it is arguably negligible in the latter, making them separate objects of discussion.
This part further addresses two other questions critical to building a creator-friendly copyright regulation approach. First, where can we draw the line between protecting creators of existing works and benefiting those of GenAI works? It is reasonably common to devise copyright rules in favor of new actors coming along with technological developments. The time-shift exception and the ‘safe harbor’ rule are just two examples. Regarding GenAI companies, the text-and-data mining (TDM) exceptions reserve a special zone to freely access mass data, including copyright-protected works, for training AI models. It is then worth discussing the boundary of TDM exceptions, which is not always clear, especially in cases where no specific TDM exceptions have been stipulated, like in Canada and the U.S. Second, in scenarios where TDM exceptions do not apply, how can copyright owners, particularly individual creators, be fairly compensated? A promising direction is to learn from existing licensing models for copyright collective management, which are designed for the massive use of packages of copyright-protected works.
Lawful Yet Unauthorized Copying: Protecting Fundamental Copyright Principles in an Era of Generative Artificial Intelligence
Faith O. Majekolagbe – Assistant Professor, University of Alberta Faculty of Law
This Paper aims to address the growing misconceptions in Canada regarding the extent of copyright’s exclusionary power brought about by the use of copyrighted works for generative artificial intelligence (AI) purposes. The Paper considers the argument that copyright owners have the right to control every valuable use of their work, and as such, every unauthorized copying or use of their work is unlawful and requires compensation. It shows that such an argument contradicts the nature and fundamental principles of copyright law. In doing so, it revisits key fundamental principles of copyright law established or entrenched by the Supreme Court of Canada in CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13 [CCH] and advocates for the protection of these principles in an era of generative AI. These include the principles that (i) copyright protection only attaches to original expressions and not ideas; (ii) not all unauthorized acts constitute copyright infringement; (iii) the Copyright Act is a balance of two sides of the public interest in copyrighted works; (iv) fair dealing is an affirmative user right and is as integral to the copyright system as authors’ rights; (v) copyright balance involves recognizing and giving effect to the limited nature of authors’ rights; and (vi) unauthorized copying and use of copyrighted works for commercial purposes can be lawful.
Libraries and Large Language Models as Cultural Technologies and Two Kinds of Power
Mita Williams – Law Librarian, University of Windsor Faculty of Law
Both libraries and large language Ai models can be understood as cultural technologies, rather than forms of intelligence with agency [1]. Drawing from Patrick Wilson’s "Two Kinds of Power", a foundational text of library science, we can draw an essential distinction between libraries and large language models (LLMs) [2]. Unlike LLMs, libraries are shaped by practices collectively understood as bibliographic control and as such, are much better suited than large language models to support knowledge claims made through citation and bibliography that generate and regenerate academic work, while doing so within copyright [3].
[1] Eunice Yiu, Eliza Kosoy & Alison Gopnik, “Transmission Versus Truth, Imitation Versus Innovation: What Children Can Do That Large Language and Language-and-Vision Models Cannot (Yet)” (2024) 19:5 Perspect Psychol Sci 874–883, online: <https://doi.org/10.1177/17456916231201401>.
[2] Patrick Wilson, Two Kinds of Power: An Essay on Bibliographical Control (Berkeley: University of California Press, 2022) UC Press voices revived.
[3] Ronald E Day, The modern invention of information: discourse, history, and power, updated and rev. ed ed (Carbondale, Ill.: Southern Illinois Univ. Press, 2008).
Panel 7: From CCH to… What Next? Copyright Law and Unfulfilled Promises
The Meaning of Technological Neutrality
Cameron Hutchison – Associate Professor, University of Alberta Faculty of Law
CCH v. Law Society famously reframed exceptions to copyright protection as “user rights.” These user rights now form part of the purpose of copyright, which is to balance user rights with authorial rights and to maximize the dissemination of works. In ESA II, the Supreme Court recently stated that the principle of technological neutrality, as an interpretive tool, helps effect a balance between authorial and user rights. Drawing on the Supreme Court’s use of the principle of technological neutrality to date, I argue there are five legal attributes of this principle being it: (1) is discretionary in nature (2) applies to authorial and user rights (3) is a tool that helps effect balance (4) it uses functional equivalency or neutralizes digital features to evolve rights under the Act (5) generally promotes digital innovation by limiting compensation for technical, imperceptible copying. This last attribute is of uncertain scope and the most consequential for determining copyright infringement for machine learning used for artificial intelligent systems.
What Is Copyright For? Lessons from the TPM Debates
Anthony Rosborough – Assistant Professor, Dalhousie University Schulich School of Law, Law & Technology Institute, Faculty of Computer Science
CCH Canadian v. LSUC offered a foundational vision of Canadian copyright as a balanced regime, recognising fair dealing as a user right. But that vision has not extended into emerging domains of copyright governance, particularly the regime surrounding technological protection measures (TPMs).
Through my involvement in legislative reform efforts on repair and interoperability (including testimony before the INDU Committee on Bills C-244 and C-294) I witnessed firsthand how TPMs have created a parallel legal world, siloed and disconnected from the user rights framework that CCH affirmed.
Throughout these debates, industry opponents raised concerns about public health, cybersecurity, and environmental safety; objections with little grounding in copyright law. Yet they were often accepted uncritically. This points to a deeper conceptual drift: policymakers increasingly lack a coherent understanding of what copyright is for.
As copyright law confronts new, complex questions around generative artificial intelligence, the TPM debates offer an important case study. They reveal the risks of expanding copyright into new domains without clear normative direction. We cannot afford to not know what copyright is for.
This paper surveys the lessons of the TPM experience and argues for the preservation of CCH’s values (fairness, balance, and public interest) as we shape copyright policy for an era of AI, automation, and predictive technologies.
A Case of Balance: Canadian Copyright’s Strong Foundation for a Creative Future
Lisa Macklem – PhD Candidate/Lecturer, University of Western Ontario/King's University College
Writing in 2014, Michael Geist declared that “A decade after its release, [CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13 [CCH]] has grown in stature as the leading users’ rights copyright decision by a high court in the world.” The landmark judgment in CCH celebrates its 21st anniversary this year and the case has aged like a fine wine, becoming a robust accompaniment to help tackle new, complex issues. This important case set the parameters for copyright in Canada to enjoy a balanced and nuanced approach that reaches back to the foundational principles of copyright that balance the public interest with creators’ private interests. This grounded approach has allowed Canadian copyright to remain nimble and flexible even in the face of technological disruptions such as generative AI. Not long after the publication of CCH, Abraham Drassinower stated that “Not least among the reasons the decision is of such importance is its affirmation of ‘users rights’ as a concept integral to copyright law.” More recently, David Vaver has pointed out that “The Supreme Court has not strayed from the CCH case. Rather, it has built on and expanded it in three later cases.” Importantly, the court’s assertions in CCH in regards to users’ rights, which lean into the educational underpinnings of copyright, have paved the way for Canadian creators to learn and to thrive. Balancing increasingly long durations of copyright with giving fair dealing “a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained” remains an important way of supporting emerging creators in particular. McLachlin, CJ went on to state that “The Copyright Act does not define what will be “fair”; whether something is fair is a question of fact and depends on the facts of each case.” Thus, the SCC also ensured continuing flexibility when new sets of facts were applied through the lens of the six factor test. The core copyright principles and doctrines relied on in CCH are still easily capable of dealing with the challenges of generative AI, in regards to originality, fair dealing, and reproduction. The principles and doctrines of CCH have been carried through subsequent cases to continue to support both creators and users.
Introducing the A2AJ's Canadian Legal Data: An open-source alternative to CanLII for the era of computational law
Sean Rehaag - Associate Professor, Osgoode Hall Law School
Simon Wallace - PhD Candidate, Osgoode Hall Law School
Twenty years after CCH Canadian v. LSUC affirmed fair dealing rights in legal information, Canada faces a new crisis of asymmetric access to law. This paper traces how CanLII -- born from the same access-to-justice impulses that animated CCH -- has paradoxically become a barrier to computational legal innovation. The paper introduces the Access to Algorithmic Justice (A2AJ) Canadian Legal Data as a corrective.
Our historical analysis reveals a recurring pattern in Canadian legal information: public-minded initiatives repeatedly succumb to private enclosure when the value of the legal data they collect becomes apparent. QUIC/LAW's federally-funded computational law project became the commercial Quicklaw empire. SOQUIJ, ordered by Quebec courts to democratize access, now restricts bulk data to four commercial giants. Most troublingly, CanLII itself -- established explicitly to provide open access to law -- has transformed from liberator to gatekeeper.
The paper documents CanLII's troubling evolution. Founded in 2001 with a mandate to make law freely accessible, CanLII now holds over 3 million legal documents which it makes available to the public online without charge. Yet it prohibits bulk or programmatic access through restrictive terms of service and copyright claims over its dataset. This has significant implications as we enter the era of computational law where artificial intelligence technologies increasingly mediate access to justice. Without bulk access to legal data, developers cannot build affordable legal technologies for marginalized communities. Law students cannot learn modern computational legal methods. Researchers cannot conduct large-scale empirical studies of systemic bias or access-to-justice metrics.
Against this backdrop, we introduce the A2AJ's Canadian Legal Data project: 116,000+ court decisions, 5,000+ statutes and regulations, over 1.2 billion tokens of legal text, all freely accessible through multiple channels. We provide RESTful APIs for targeted searches, Hugging Face datasets for machine learning research, Parquet downloads for bulk analysis, and Model Context Protocol integration for AI assistants. Our infrastructure enables everything from community legal clinics building chatbots to researchers analyzing court outcomes to tribunals measuring their own accessibility initiatives.
The paper concludes by situating this work within the broader struggle for democratic access to law. Just as CCH recognized that copyright should
not be weaponized to restrict access to justice, we argue that CanLII and other large commercial legal dataset companies, should not be allowed to monopolize computational legal innovation.
For now, the A2AJ's Canadian Legal Data represents a technical workaround for a portion of Canadian law – a portion that we are working to expand. But beyond that, the A2AJ embodies a vision where open-source legal technology and open access to bulk legal data advances access to justice rather than private interests. Our hope is that, with some prodding (and perhaps some competitive pressure), CanLII will choose to make good on its mandate. In that happy event, we would pivot to working on projects that use public legal data to advance algorithmic justice for marginalized communities to push back against the status quo where the advantages of computational legal technologies accrue disproportionately to individuals and institutions with deep pockets -- and to the lawyers who represent them.