The development of copyright law in Canada has never been quick to move but rather advances like a river carving its course, slow, persistent, and shaped by centuries of cultural and legal history. From the imperial statutes imported in the nineteenth century to the quiet but profound pronouncements of today’s Supreme Court, its progress has been less a leap than a measured accumulation of meaning across generations. Each judgment is a stone laid carefully in the stream, sometimes uneven, sometimes contested, yet together forming a path that reflects Canada’s patient effort to balance the rights of creators with the needs of users, tradition with innovation, and private reward with the public’s access to knowledge.

In March 2004, the Supreme Court of Canada released CCH Canadian Ltd. v. Law Society of Upper Canada, (“CCH”), a case that began as a dispute over library photocopying but grew into one of the most influential copyright rulings in Canadian history. In a single unanimous judgment, the Court redefined the purpose of copyright, reshaped its doctrinal foundations, and projected Canada’s legal voice onto the international stage. Twenty-one years later, on a bright, sunny weekend in , scholars, practitioners, professionals, and observers gathered at the Centre to reflect on the enduring legacy of CCH at home and abroad, asking: what did this ruling truly accomplish, and what did it set in motion?

The CCH ruling addressed four critical questions. First, the Court adopted the “” test for originality, rejecting the idea that mere industrious effort, what had been called the “sweat of the brow”, was enough to qualify for copyright protection. Originality required more: an intellectual contribution that reflected thought and decision.

Second, the Court narrowed intermediary liability. Simply providing the means for infringement, such as photocopiers in a library, would not make an institution liable unless it the infringing use.

Third, it clarified “,” a concept increasingly relevant in the digital age, limiting how far publishers could stretch their rights against libraries sharing works with their patrons.

And fourth, and most famously, the Court recognized fair dealing and other exceptions as “.” With this declaration, the Court placed access and fairness at the heart of copyright law, ensuring that copyright was not simply a monopoly for rightsholders but a balanced framework serving creators, users, and the public interest.

As with any turning point in law, CCH’s legacy is complex. Supporters celebrate it as the moment Canada broke from overly restrictive copyright models and embraced a fairer balance between access and control. Critics, however, argue that the decision distorted the legislation and accelerated the decline of Canadian educational publishing. While Quebec largely charted its own cultural path, much of English Canada embraced the Court’s expansive vision of user rights, leaving local publishers crying foul as they struggled to adapt and compete in the digital era.

Even within institutions, the embrace of user rights has been uneven. While fair dealing has flourished through subsequent cases in the Supreme Court’s “” and amendments to of the Copyright Act, other exceptions, such as disability rights under , remain under-utilized. Libraries and universities, wary of litigation, often adopt risk-averse policies that fail to reflect the spirit of CCH. It is a reminder that judicial doctrine alone cannot change practice; institutions (and the people who work for them) must also to carry the torch.

Though born of a Canadian library, the CCH decision quickly echoed abroad. In India, the Supreme Court adopted Canada’s “skill and judgment” test in (2008), and today Indian courts continue to revisit CCH as they grapple with generative AI disputes and the role of user rights in text and data mining. In South Africa, reform efforts to decolonize and modernize copyright law have built upon CCH, with the proposed seeking to expand exceptions and incorporate fair use principles that mirror Canada’s emphasis on balance. Across Africa’s music economy, the narrowing of intermediary liability established in CCH resonates strongly: while limiting liability can promote innovation, in regions with weak enforcement institutions, it risks enabling exploitation—highlighting the danger of transplanting doctrines from well-resourced systems into fragile infrastructures. Meanwhile, in Europe and Latin America, Canada’s approach has sparked reflection of another kind. European scholars contrast Canada’s robust recognition of user rights with the EU’s narrower framework, while in Brazil, cultural policy debates under Gilberto Gil in the early 2000s similarly sought to reframe copyright as more than just a market commodity. In each of these contexts, CCH has functioned as both compass and caution—proof that a single Canadian decision can shape global debates, but also a reminder that law must always be adapted to the realities of place and culture.

CCH Canadian Ltd. v. Law Society of Upper Canada stands as a milestone not just in Canadian copyright, but in the global story of how law adapts to new technologies and shifting cultural priorities. Its vision of user rights has shaped debates from Ottawa to Delhi, Cape Town to São Paulo.

Looking back, CCH reminds us of the slow dance of law in Canada. It did not arrive with fanfare but unfolded through a quiet dispute about photocopiers and fax machines, carried by careful words and judicial reflection. Yet over time, its influence spread like ripples on water—shaping institutions, and practices, inspiring courts and policymakers abroad, and offering copyright law a compass for navigating entirely new technological challenges.

Law evolves slowly, but its slowness is part of its strength. In a world of disruption, it anchors us to principles that endure: fairness, balance, and the recognition that the rights of users and the public are not afterthoughts but part of the very purpose of copyright. As Canada reflects on the case twenty-one years later, it is worth remembering the lesson woven through its legacy: law does not race to keep up with every innovation, but moves like water in a stream, guided by the memory of where we have been and the hope of where we might yet go.

Links to the recorded panel presentations, speakers' bios and paper abstracts are now available .

A lawyer and graduate of the Osgoode Professional , Shadi Nasseri's doctoral research addresses the profound legal and ethical concerns arising from neurotechnologies, including issues related to mental integrity, human dignity, personal identification, freedom of thought, accessibility, autonomy, and privacy.

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IP Day was a phenomenal experience, especially as a student having the opportunity to meet leaders in the IP field and many of the judges before whom IP cases often come. I was especially excited to attend the Judges’ Dinner, which honoured Justice Roger T. Hughes. The CBA’s Intellectual Property section organised a fantastic event and I certainly hope to attend many more times in the future.

“Just Laugh It Off: Trademark Parody and the Expansion of User Rights” will appear in the upcoming issue of the . The introduction to the paper is excerpted below.

In Canada, the concept of fair dealing has been described as a “user’s right,”[1] as have the other exceptions in the Copyright Act [2]. In CCH Canadian Ltd v Law Society of Upper Canada, the Supreme Court of Canada explained that a non-restrictive interpretation of these rights is integral to maintaining a proper balance “between the rights of a copyright owner and users’ interests.”[3] Previously, the Court recognised that such a balance is a fundamental element of copyright law, stating in �ճ�é��������� v Galerie d'Art du Petit Champlain inc that there is a “balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”[4] Indeed, this balance has been a feature of copyright cases decided after �ճ�é��������� and CCH.[5] Thus, the conceptualization of the intellectual property rights in copyright operate within the context of the competing interests of creators/owners of works and those third parties who wish to use the works.

The idea of balance between owners of intellectual property and the public’s interests in using that property is not restricted to copyright. The Supreme Court has said that the “patent system is based on a ‘bargain’ … the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge.”[6] Copyright and patent law offer a trade-off of sorts between the monopolies they grant and the public interest in using the fruits of those monopolies in some way. Of course, there is tension between creators/owners and users because of this balancing act. This struggle led the Federal Court of Appeal to cite the nineteenth-century British case Hanfstaengl v Newnes[7] with approval:

The protection of authors, whether of inventions, works of art, or of literary compositions, is the object to be attained by all patent and copyright laws … On the other hand, care must always be taken not to allow them to be made instruments of oppression and extortion.[8]

Intellectual property law, then, must take note of those who use what it protects and should not extend beyond its prescribed boundaries.

We therefore have a tense balance and a bargain in intellectual property law. Fair dealing is an example of both legislation and courts accounting for this fact. What is conspicuously absent from the law, however, is any express acknowledgement of user rights in trademark law. Trademarks are intellectual property, even if they are “something of an anomaly,”[9] and they are often dealt with by third parties. Trademarks depicted by non-owners might appear in a number of ways, such as in paintings of a university football team,[10] on union literature criticising an employer,[11] or even parodying a canned luncheon meat in a puppet film.[12] Yet, the law of trademarks does not explicitly recognise these dealings or uses as fair (or at least potentially fair) – there is no set of fair dealing provisions for research, parody, criticism, or news reporting[13] in the Trade-marks Act.[14] The absence of such provisions in the trademark realm is indicative of a lack of balance between the public interest and intellectual property owners’ rights. There is the potential for owners to attempt to extend their rights beyond “the purpose of distinguishing or so as to distinguish goods or services.”[15] As Professor David Vaver has noted, maintaining a strong public domain benefits competition, innovation, consumer markets, and the public interest. Intellectual property protection must therefore be carefully circumscribed and should not extend beyond its specified limits.[16] The lack of circumscription for trademarks invites overreach (the potential oppression and extortion mentioned in Hanfstaengl), including in the area of free expression, and the lack of acknowledgement of users creates imbalance. Consequently, it is time that Canadian trademark law recognise a form of fair dealing.

Sebastian Beck-Watt is Senior Editor of the IPilogue and a graduate of Osgoode Hall Law School.

[1] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339, at para 48 [CCH].

[2] RSC 1985, c C-42 [Copyright Act].

[3] CCH, ibid. at [48]

[4] �ճ�é��������� v Galerie d'Art du Petit Champlain inc, 2002 SCC 34, [2002] 2 SCR 336, at para 30 [�ճ�é���������].

[5] David Vaver, “Copyright Defenses as User Rights” (2013) 60:4 J.Copyright Soc'y USA 661, at 669.

[6] Teva Canada Ltd v Pfizer Canada Inc, 2012 SCC 60, [2012] 3 SCR 625, at para 32.

[7] [1894] 3 Ch 109 (CA), at 128.

[8] Canadian Assn of Broadcasters v Society of Composers, Authors and Music Publishers of Canada, [1994] FCJ No 1540, 58 CPR (3d) 190 (FCA), at para 13.

[9] Mattel, Inc v 3894207 Canada Inc, 2006 SCC 22, [2006] 1 SCR 772, at para 21 [Mattel].

[10] The University of Alabama Board of Trustees v New Life Art, Inc, Daniel A Moore, 683 F3d 1266, 1269–70 (11th Cir 2012) [Moore].

[11] Cie générale des établissements Michelin - Michelin & Cie v. CAW – Canada, [1997] 2 FC 306, [1996] FCJ No. 1685 (FCT) [Michelin].

[12] Hormel Foods Corp v Jim Henson Prods, 73 F3d 497 (2d Cir 1996) [Hormel].

[13] Copyright Act, supra note 2, s 29-29.2.

[14] RSC 1985, c T-13 [TM Act].

[15] TM Act, supra note 14, s 2(a).

[16] David Vaver, Intellectual Property Law, 2d ed (Toronto: Irwin, 2011) at 23 [Vaver, IP Law].

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������������dz���’s Reporter is an Ottawa news reporter that grants access to its articles via a subscription service. After it on a court decision relating to the CVA, personal defendant Dan Paszkowski and a colleague became alerted to the article on the premise that it might contain factual inaccuracies. Without a subscription, they resorted to contacting an acquaintance with access, who provided them with a cut-and-paste copy for them to examine. Once ������������dz���’s became aware of this, they requested that both individuals purchase subscriptions. Their claims went ignored.

Before delving too deeply into the evidence, the biggest thing to take away from ������������dz���’s is that under the court’s reasoning, access must be lawful before any use can take place. Though the size of the claim merited an action in Small Claims Court, the analysis leaves much to be desired – Gilbert DJ making a number of errors, such as continually referring to fair dealing as a ‘defence’ against breaching copyright. Most importantly, when running the fair dealing analysis (clearly outlined in as the consideration of six distinct factors), the court appeared to confuse these factors with the bad faith considerations of an assessment of damages under . The Court’s eventual conclusion was that if the material was not obtained legally ‘and with colour of right’, then fair dealing was not available, and the analysis should not even run that far.

Although the Court noted that the Act should be read in light of the modern approach to statutory interpretation in that an act should be read harmoniously as a whole (), Gilbert DJ’s analysis separates out TPM circumvention as a separate offence altogether from breach of copyright, as opposed to a method of breach. Whereas another court may have determined TPM circumvention in light of fair dealing, this decision not only appears to take a somewhat backwards stance, but it also .

of strong copyright protection may well be impressed with the decision, but it’s important to note that the Copyright Act characterises fair dealing as an ‘exception’ as opposed to a defence. Such a view is especially pertinent given the facts of the case – investigating an article to check and possibly correct factual inaccuracies would appear to fall squarely within the research provision of .

CCH calls for fair dealing to be interpreted broadly, taking into account the purpose, character, and amount of the dealing; the availability of alternatives, and both the nature of the work and the effect of the dealing on the work. It also makes clear that fair dealing should always be available. Finally, in CCH, the court notes that fair dealing should not be limited to non-commercial contexts, and that the allowable purposes of research, private study, criticism or news reporting should not be given a restrictive interpretation, but that courts should “attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work” [para 54].

For Gilbert DJ, that assessment incorporated its own use requirements, as he stated “credibility is an issue given the fact that their ultimate reason for obtaining the material in the first place was to challenge statements made therein and the alleged importance in so doing, once received, nothing came of it. Their stated objective therefore is disingenuous.” Although he recognises that research and private study should be interpreted broadly, the failure to follow through with attempting to make corrections to the article was fatal to the defendants in this case. Such reasoning seems difficult to comprehend – if the article was unavailable to access, how could the defendants know they had a meritorious claim to have it corrected? It appears that the only answer, in the Court’s view, is for users to accept the transaction costs regardless.

Andrew Hunter is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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As is well-known, one of the more unusual features of Canadian law that somehow remains perpetually understated in IP circles is that our federal laws are proclaimed in two official languages, English and French; as per Section 18(1) of the Charter, both versions of the law are equally authoritative. Similarly, decisions from many adjudicative boards and courts are published in both English and French and both versions are also, at least in theory, equally authoritative. Given this trait, as a point of habit in my research, I often compare important passages of a legal text (statute, decision, etc.) published in English with the equivalent passages in the French version (and vice-versa), to see if any identifiable differences exist between the two.

I’ll return to the linguistic duality of Canada’s legal system in just a moment, but for now, let’s shift gears over to some fundamental principles of copyright law. As every student of copyright in this country is taught, “copyright shall subsist in Canada [...] in every original, literary, dramatic and artistic work” (s 5(1) of the Copyright Act), with the added nuance that copyright law protects only the original expression of ideas, not the ideas in and of themselves (Moreau v St Vincent, [1950] 3 DLR 713 (Ex Ct), at 203). The question of what constitutes “original expression” in a work, though, required an answer from the Supreme Court, given that the Copyright Act does not itself define the terms (nor the term “original” by itself). As every student of copyright in this country also learns, in CCH, Chief Justice McLachlin wrote that:

“What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.” (CCH at para 16, my emphasis)

This passage is well-known, and is often taken as the definition of “original expression” in Canadian copyright law. Original expression involves skill and judgment. Such a phrase is repeated ad infinitum in law schools across the country.

What seems less well-known, though, is how this oft-cited and crucial observation from CCH was presented in the French version of the decision:

“L’élément essentiel à la protection de l’expression d’une idée par le droit d’auteur est l’exercice du talent et du jugement.” (my emphasis)

For readers with even a most rudimentary understanding of French, a surprising nuance jumps out here. The term ‘skill’ in English is translated as ‘talent’ in French. Linguistically speaking, this is somewhat unusual. My own term for translating ‘skill’ is ordinarily ‘habileté’ ; as it turns out, the Government of Canada’s Translation Bureau (proxied here via Termium Plus, “the Government of Canada’s terminology and linguistic data bank” for matters of translation) agrees with me that this is the normal, so-called ‘correct’ translation. Nowhere in any given translation of the term ‘skill’ does the word talent (in French) appear as an option. The inverse is also true: searching for translations of the word talent (in French) does not yield the term ‘skill’ in English. Unsurprisingly, in that latter case, the term ‘talent’ (in English) is suggested.

So, “original expression” is skill and judgment in one language, and talent and judgment in the other. This is a rather interesting choice, to say the least.

How are we to think about this difference, given that both texts are supposedly equally authoritative? One could be tempted to write off the translation as an error and move on to more pressing matters. Yet that sits somewhat uncomfortably as an argument, in that it presumes that the Supreme Court does not actually mean what it claims black on white that it means. There is also a problem in implicitly asserting that the French version is by default a translation of the English version; given the collaborative nature of SCC decision-writing (see McInnes, M., J. Bolton, & N. Derzko, "Clerking at the Supreme Court of Canada" (1994) 33 Alta L Rev 58), for all we know, the paragraph first originated in French, and was later translated into English. Finally, there is some danger in presuming that the nation’s most careful group of writers inattentively let one go by, no matter how small the nuance. Even though bilingualism is not a formal requirement of acceding to the Supreme Court’s bench, most Justices of the Court are nonetheless at very least functionally bilingual, with many achieving complete fluency. These linguistic competences should in both theory and practice ensure that most Justices are attuned to the nuances of judicial translation. Then there is the fact three Justices involved in deciding CCH list French as their first language (Bastarache, LeBel, Deschamps). As a default position, then, assuming that the Court means what it says black on white seems like the more prudent (and legally defensible) position.

Therefore, given the difference between using the term ‘skill’ in English and the term talent in French, what do we make of that? To illustrate the wiggle room the nuance between the two terms opens up, consider the following pairs of sentences. Is there any meaningful difference between the first and second statement?

“François is a skilled cook.”

“François is a talented cook.”

“The concert featured a very skilled soloist.”

“The concert featured a very talented soloist.”

To my linguistic senses, while the terms “skill” and “talent” are related, they are not quite fully interchangeable either. To me, talent appeals to some higher capacity than skill. While I would happily eat a meal prepared by a skilled cook any day, one prepared by a talented cook seems even more appetizing; and while hearing a skilled soloist perform in concert sounds great, hearing a talented one sounds even better. Anecdotally, people here at Osgoode Hall with whom I’ve discussed this observation agree that there seems to be a bit a gap - not a large one, but a noticeable one nonetheless - between skill and talent. The term ‘skill’ points more toward the technique involved in performing an activity, be it writing poetry, composing music or coding software. Talent, on the other hand, implies some aptitude that requires skill and technique, yet pushes beyond these categories in such a way that some kind of quasi-innate personal creative spark is recognizable. For instance:

 “Jordan is a skilled basketball player.”

“Jordan is a talented basketball player.”

Talent again seems to come in one notch ahead of skill. Where does this nuance come from? One possible answer is the divergence between civil law and common law, as represented on the bench of the Supreme Court. Whereas in the English common law, copyright is understood in a more Lockean labour-oriented perspective, en français, civil law jurists in the droit d’auteur tradition have long adopted a more personality-oriented Kantian view of copyrighted products, such that poems, songs and even academic articles represent the inalienable essence of a person. To be sure, this is of course a gross oversimplification of how Canada and Canadians as a whole understand the copyright/droit d’auteur divide. Yet it is also a useful categorization, insofar as it helps reconcile the divide between the English ‘skill’ and French ‘talent,’ in that the former is more labour-oriented, whereas the latter is more personality-oriented. Given the Supreme Court bench ordinarily comprises of three civil law jurists, this may in part explain how this ‘discrepancy’ came up. Since these civil law jurists come from Québec, and Supreme Court jurists from Québec almost unequivocally show complete command of the French language, a civil law-based standard that requires talent instead of habileté for original expression here is likely to find greater favour among those jurists of the bench who speak French. That this nuance would then show up in the terminology of the decision, intentionally or not, is therefore not all that surprising.

Whatever the difference’s origin, one crucial point about it remains: it is entirely possible that the language in which one reads CCH may influence one’s reading of the standard required of expression for it to qualify as original. If, as I show above, talent actually is understood as being one notch ahead of mere skill, then it follows that a judge of the Federal Court of Canada hearing a copyright action in Québec City in French may grasp a slightly different meaning from CCH than another judge hearing a similar action that same day in Vancouver in English. While the two meanings are hardly irreconcilable (and the shared meaning principles of R v Daoust, [2004] 1 SCR 217 would probably make short work of any differences between the two meanings, should the topic come up in court), the nuance is still a most interesting one to notice as a proxy for how different modes of legal thought and analysis operate and come together at the highest court in the land (or not, even when the Justices themselves claim they do).

Guillaume Laroche is a Graduate Student Member of IP Osgoode and an LLM candidate at Osgoode Hall Law School, where he researches issues on music and copyright.

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