Sharing 'fair dealing' not 'circumvention of technological protective measure' under Copyright Act
In a case about the balance between copyright protection and users’ “fair dealing” rights under the Copyright Act, the Federal Court has found that a federal government department’s sharing of a media subscription password did not count as prohibited circumvention of a technological protective measure.
1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 is one of many cases before the courts in which Blacklock’s Reporter alleges various federal departments and Crown corporations are committing copyright infringement by sharing subscription passwords to view its content. Blacklock’s is a journalistic institution covering the federal government and federal courts.
In each of the cases, the defendants claim to be protected by the fair-dealing provision under s. 29 of the Copyright Act. According to s. 29, “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” The AG said the department shared the subscription passwords to “conduct research, media monitoring, verification of accuracy or consideration of whether a response [to Blacklock’s reporting] was required,” said Federal Court Justice Yvan Roy.
The AG accused Blacklock’s of copyright trolling. It said Blacklock’s would send “teasers” of “inaccurate, deceptive, or inflammatory articles,” intended to entice the purchase of subscriptions, where “terms and conditions are ambiguous and are buried in the webpage.” Months later, Blacklock’s would file access to information requests to determine how the articles have been shared.
“That's the business model. All of the cases that are currently before the Federal Court – and there's about 20 of them – have exactly the same fact pattern,” says Alexander Gay, general counsel at the Department of Justice who acted for the AG in the case.
He says that the decision in Blacklock's Reporter v. Canada does not stand for the proposition that password sharing is always permitted. Rather, it finds that, in the context of an institution purchasing a right to access, where the password is shared among that institution as intended under the terms and conditions of the license, that conduct is acceptable.
The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) was an intervenor in the case.
Blacklock’s argued that the password sharing to access its online articles is a circumvention of its technological protection measures (TPM), contrary to s 41.1(1)(a) of the Act.
The leading authority on what constitutes fair dealing, said Roy, is CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339, the dispute in which revolved around the law society’s reproduction at Osgoode Hall’s Great Library of “reported cases, statute, regulation or limited selection of text from a treatise.” The court ruled this reproduction comprised “research” under s. 29. The case, said Roy, established “the fundamental principles and underpinnings of the law,” by stating two things. One: “fair dealing is an integral part of the scheme; it is not a defence.” And two: “in order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”
Roy concluded that Parks Canada did not infringe Blacklock’s copyright. There was “clear evidence” that the department used the subscription “exclusively for a purpose consonant with the fair dealing provision of the Act.” The purpose: research.
He adds that the SCC has stated that “research” must receive “a large and liberal interpretation” to ensure users’ rights are not “unduly constrained.”
Roy’s findings closely followed the Federal Court’s ruling on the copyright infringement case Blacklock’s brought against the Department of Finance, which was dismissed in 2016.
The SCC outlines the list of factors that they use in fair-dealing cases to determine fairness: the dealing’s purpose, character, amount, potential alternatives, the nature of the work, and the dealing’s effect on the work. Roy also compared Parks Canada’s situation to the 11 factors outlined in the Department of Finance case. His observations included, but were not limited to, the fact that the subscription was used for a “legitimate business reason,” was circulated only to people who used it for that business reason, they sought no commercial advantage, many of the articles were relevant to the agency’s mandate, and there was a reasonable basis for concern that articles contained “misleading and alarmist” citations which called for sharing. The terms and conditions of the subscription were not ignored, but unknown, and, in any event, the provisions “did not unambiguously prohibit the circulation of Blacklock’s copy for personal or non-commercial purposes.” The judge added that there was “significant public interest” in reading the articles so as to protect the public and press against errors and omissions.
Blacklock’s argued that Parliament’s intent with the Copyright Act was to prevent the use of copyrighted works where the user is circumventing technological protection measures (TPM), and that its password is a TPM for the purposes of the Act. To qualify as a TPM, said Roy, the method in question “must be a technology, device or component that must be effective in controlling access to the work or restricting the doing of some act.” Fair dealing is not applicable where the user has circumvented a TPM because “allowing it would be disregarding clear Parliamentary direction,” he said.
The intervenor CIPPIC argued that sharing a “validly obtained password” to access content does not fit the definition of “circumvent.” Roy agreed that the sharing demonstrated by the facts on the record constituted fair dealing according to s. 29 of the Act.
Dr. Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, called Blacklock's Reporter v. Canada a “landmark decision on copyright’s anti-circumvention rules” and a “huge win for copyright user rights in Canada” that could have “enormous implications for libraries, education, and users more broadly.” Geist said the decision restores the balance between user’s and creator’s rights.
