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This decision is in respect of both an appeal and a cross-appeal from a decision of the Federal Court of Appeal dated May 14, 2002.
BACKGROUND
Operated by the Law Society of Upper Canada (the Law Society) and holding over 120,000 volumes, the Great Library at Osgoode Hall is one of the largest collections of legal materials in Canada. The Great Library operates as a reference library whose materials do not circulate outside of the library or the court rooms located in the same building as the Great Library. In keeping with its mandate to "meet the legal research and information needs of Law Society members by providing access to publications, documents and services necessary to the practice of law", the Law Society has operated a photocopy service that has provided copies of materials found in the Great Library to the legal profession since 1954 and continues to do so. This service operates on a not for profit basis and since 1996 has operated in accordance with the Law Society's "Access to Law Policy", a set of guidelines that set out the circumstances in which copies of legal reference materials are provided. In doing so, the Law Society meant for its photocopy service to be consistent with s. 27 of the Copyright Act8 (the Act). As well, the Law Society has placed photocopiers that may be used by the public in the Great Library.
The issues that this action addresses were first raised by CCH Canada Ltd. and the other plaintiffs (collectively the Publishers) in the early 1990s, and the Publishers initiated this suit in 1993. The suit alleged that the Law Society infringed the Publishers' copyrights in an assortment of legal reference materials, namely, three reported decisions and the related headnotes, a case summary, a consolidated topical index, an annotated statute, and extracts from a text book and a monograph (collectively the Reference Materials), by providing a single copy of such materials in response to a request made of the Law Society's photocopy service. The suit also alleged that by allowing patrons of the Great Library unrestricted access to free standing photocopiers in the Great Library, the Law Society authorized those patrons to make reproductions of copyrighted works, and that such authorization was...