Simon Chester is a partner in the Toronto law firm of McMillan Binch LLP and a member of the firm's KNOWlaw Group. This article was prepared with the assistance of Lisa Parliament.

What started as a dispute over photocopying in a law library has resulted in what may be the most significant copyright case in decades.

The Supreme Court of Canada's decision that the Law Society of Upper Canada's Great Library did not infringe legal publishers' copyright may well change the legal landscape for both creators and users of copyright works.

The publishers claimed that the Law Society was breaching copyright law when its Great Library copied extracts from books and faxed them to lawyers.

They also claimed that the Law Society encouraged members to break the law by providing self-service photocopiers that could make unlimited copies.

The Law Society responded that its service was in the public interest and that any copying came within the "fair dealing" exception to the Copyright Act.

In its landmark decision, Canada's top court emphasized that copyright law must protect the rights of users as well as creators.

For example, when deciding whether the works in question were original and therefore protected by copyright, the court confirmed that some sort of intellectual effort is required. While "originality" doesn't necessarily mean something has to be novel or unique, it must show the exercise of skill and judgement.

Perhaps the most significant issue was the court's assessment of the Law Society's claim that its copying was "fair dealing," and again the court emphasized the importance of users' rights.

The fair-dealing exceptions to copyright law set out ways in which people can legally copy the works of others. They include fair dealing for the purposes of research, private study, criticism or review, and news reporting.

The court emphasized that these exceptions were an integral part of copyright law and should be viewed as actual rights, not just defences or loopholes.

And in considering "fair" an open-ended concept that depends on the circumstances of each case, the court moved "fair dealing" closer to the much broader notion of "fair use" under U.S. copyright law. In fact, the framework used by the court is based on tests used by American courts in cases where fair use is claimed.

According to the court, the factors to be considered are:

* The purpose of the use

* The character of the use

* How much of the original work was used

* Whether there were alternatives to using the original work

* The nature of the original work

* The effect on the market for the original work

In this case, the court noted that the purposes set out in the Act should be interpreted liberally so users' rights aren't restricted more than necessary.

And, similar to the American approach, the court said that the final factor - the effect on the market - is an important factor, but not the only one or even the most important one. So, if the reproduced work is likely to compete with the original work, it may suggest that the dealing is not fair, but that won't necessarily be the case.