Resonating with our latest class discussion, in a fresh claim filed at the BC Supreme Court, the beloved CanLII gets in a legal dispute with Caseway, a company using AI as a legal researcher assistant to provide clients with legal information for a subscription fee. CanLII alleges that the company “coordinated the bulk and systematic download and scraping” of its content.
Although the case is still at its inceptive stage, it will likely be heavily compared to CCH v. Law Society of Upper Canada. In CCH , SCC ruled that while CCH owned the copyright of the works LSUC scanned and sent to those requesting them, LSUC’s conducts did not amount to infringement because of they were fair dealing. Several issues for the BCSC to determine, will be, like in CCH, (a) whether CanLII have a valid copyright claim for the legal sources it offers; (b) whether Caseway authorizes its members to infringe the copyright by generating materials scrapped from CanLII with AI; and (c) whether Caseway has a fair dealing defence.
An article on Canadian Lawyer (CL) has summarily analyzed arguments from both sides. The founder of Caseway argues that it only uses the original court decisions published from the courts (that publisher cannot claim copyright, per CCH). The author, however, thinks CanLII can rightfully claim copyrights over the “compilation” of legal documents. But how does CanLII’s “compilation fit into the criteria of skill and judgment? Given that right now we rarely concern about copyright infringement when using materials from CanLII, the outcome of this case will impact legal researches by law students and the legal profession.
Regarding Caseway’s potential fair dealing argument, it would be interesting to see how the court assesses the six factors from CCH. For instance, the CL article noted that “there really is no other way for anybody to get bulk case law unless they have a relationship with the courts to receive it”, which may be a sound basis for arguing against alternatives to the dealing. By contrast, the convenience to reproduce AI-generated works will likely make the dealing less fair when compared to sending individual photocopies, and it may also be distinguished from other cases since Caseway has little control over what its patrons will use the materials for. Anyways, I anticipate some innovative arguments from the proceedings that could potentially alter the landscape of copyright law in Canada.
Copyright & Social Media
Communications Law