Articles Behind Paywall Subject to Fair Dealing

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Photo Credit: “Sugar” by Adam Engelhart | https://flic.kr/p/fqv6q (CC BY-SA2.0)

Yesterday, the Federal Court released its decision in Blacklock’s Reporter v. Canada (Attorney General), 2016 FC 1255, a copyright infringement action involving the circulation of articles about the Department of Finance and sugar tariffs. Over the past couple months, the case received considerable media attention given its possibility of addressing fair dealing, copyright misuse and circumvention of technological protection measures (TPMs). Despite the fanfare surrounding Blacklock’s, the case was decided on a straightforward application of fair dealing and the Supreme Court of Canada’s jurisprudence on the subject. Cue the sad music for copyright nerds.

Besides a passing comment on “some troubling aspects to Blacklock’s business practices” (at para 22), Justice Barnes was unwilling to dive into Blacklock’s litigious background, copyright misuse or TPMs. Instead, the Court focused on fair dealing for the purpose of research pursuant to section 29 of the Copyright Act, the case law on fair dealing’s interpretation, and whether the dealing of two articles by Department of Finance was fair.

In the Court’s view, the actions of the Department of Finance, which included receiving copies of two articles from a subscriber, as well as reading and forwarding the articles to other Department employees, constituted fair dealing for the purpose of research. As to whether the dealing was fair, Justice Barnes concluded it was. Further, the Court had some strong statements on the right to read and gather information (see paras 36(g) and (j)), which Teresa Scassa discussed yesterday. Justice Barnes also attempted to curb any concerns regarding the impact of this decision on paywall business models (see para 45). While some have already criticized Blacklock’s for ignoring the rational for paywalls, as Michael Geist and Howard Knopf have both pointed out, the decision is unlikely to impact such a business model, and any such model will be subject to the fair dealing.

While weighing whether the dealing was fair, the Court considered any deliberate breach of accepted Terms and Conditions (T&Cs). The issue for Blacklock’s with this argument was twofold. First, Blacklock’s failed to ensure its T&Cs were clearly brought to the attention of its subscribers. Second, even if its subscribers were aware of the T&Cs, Justice Barnes was of the view that the T&Cs were ambiguous in respect of downstream distribution. Given this, the case serves as an important reminder of having clearly drafted T&Cs that are sufficiently brought to a subscriber’s (or user’s) attention.

One wonders if the outcome in Blacklock’s would have remained the same if the plaintiff had pled the Act’s TPM provisions. Since it was not, Justice Barnes did not entertain any arguments as to whether a paywall would qualify as a TPM, nor whether the impugned actions amounted to a circumvention of such TPM. Despite this, Blacklock’s does have at least nine other proceedings at various stages before the Federal Court (although such proceedings have been stayed until 45 days following the determination in Blacklock’s), including at least one with an express mention of “circumvention of a subscription based lawful access of online news content.” Time will tell as to whether this, without expressly pleading section 41.1 of the Act, will be sufficient for another judge of the Federal Court to address the intersection of paywalls and TPMs.

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Author: Adam Jacobs

Adam Jacobs is a partner at Hayes eLaw LLP. His practice is focused on intellectual property, privacy, media and technology law.

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