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Bypassing a Subscription Paywall Violates Technological Protection Measure Provisions in Copyright Act, Negates Fair Dealing Defence

An Ontario court recently ruled in 395804 Ontario Limited c.o.b. as Blacklock’s Reporter v. Canadian Vintners Association and Dan Paszkowski that circumventing a subscription paywall to access a news article violates the technological protection measure (TPM) provisions in Canada’s Copyright Act, and negates the fair dealing defence to copyright infringement available under Canadian law.

The plaintiff, Blacklock, published a subscription-based newsletter which used a paywall to restrict access to paying subscribers. The defendants (collectively the “CVA”), sought a copy of an article from the plaintiff’s website. The CVA obtained a copy of the article by obtaining another subscriber’s assistance, presumably through the other subscriber’s password or other methods to circumvent the paywall. The CVA invoked the fair dealing defence on the basis that it sought the article for an educational purpose, which the Court expressly found “disingenuous”.

Canada’s Copyright Act was amended in 2012 to prohibit the circumvention of TPMs to commit copyright infringement. The Court held that the CVA had violated this prohibition when it circumvented the paywall. The Court further ruled that because the copyright material in question was obtained illegally, the fair dealing defence did not apply.

The Court also refused to award nominal damages, as the CVA viewed Blacklock’s “position as trivial and the value of its copyright as worthy of circumvention”. Damages were assessed at $13470 CDN, with $11470 CDN consisting of the cost of an institutional license and $2000 for CDN punitive damages.

Comments

  1. David Collier-Brown

    It will be interesting to see if similar cases are decided differently in other courts (this was in small claims court in Ottawa)

    From a public-policy point of view, it does looks rather suspicious: the plaintiff’s behaviour is similar to that of a copyright troll, something the technical community has been increasingly sensitized to over the last five years.

    Methinks this is another case of Judge Rolf’s (1842) dictum: hard cases make bad law (:-))

  2. It is important to note that the decision was by a deputy judge (i.e. practitioner sitting as judge in small claims) and pretty well worthless as a precedent. The case has arguably had more attention than it deserves. That’s aside from David C-B’s good point in his comment above.

  3. “Canada’s Copyright Act was amended in 2012 to prohibit the circumvention of TPMs to commit copyright infringement. ” Actually it looks to me like the circumvention itself is the “offence” under the copyright act, that no further act was necessary. There’s no suggestion that the defendant republished or otherwise infringed the copyright.

  4. John,

    Actually, if we’re going to be technical: it’s entirely worthless as precedent since there’s no person lower on the Ontario judicial pecking order (unless things have changed in Ontario since the end of 2012) than a deputy judge of the small claims court. It’s not even binding on other deputy judges. The most it can be is “persuasive”.

    David

  5. David, that is (of course) completely accurate. A number of commentators have found the decision not very persuasive, either. In my view, it demonstrates the problems with an anti-circumvention rule: the rule covers too many cases.

    The law of defamation is quite clear that communicating defamatory remarks to one person other than the person defamed is publication and can lead to legal consequences. It is not fair to the person defamed if the publication is being done in a way that he or she knows about it but cannot see it.

    It is not clear what the person defamed did in this case to get access to the disputed text. Is it circumvention to ask someone who has access to the material to give you the password, or to show you what can be seen? Is it circumvention (as distinct from breach of copyright) for the person with access to copy the defamatory text and share it with the person defamed?

    The US has a (rather cumbersome) system by which the Librarian of Congress can exempt certain practices from the anti-circumvention rule – an exemption that can be renewed (or extended) every three years. I wrote about other consequences of the rule and the exemptions here.

  6. I’d have added my favourite bit from Quinn v Leathem if I thought the analysis merited it. It’s in the last sentence of the passage which, remarkably, often gets omitted. 😇

  7. John,

    For statutory courts, judges should always know what the enabling legislation provides as the substantive basis upon which decisions are to be made. As I expect you probably once knew, but quite reasonably have chosen to forget, that provision for the Ontario Small Claims Court is: “The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” (The Courts of Justice Act, RSO 1990, c. C.43, s. 25(1))

    Now, I’d claim that a decision, in order to be “just”, has to be in accordance with applicable law. Then “and agreeable to good conscience” requires there be something more than mere compliance with law, or the phrase is superfluous. (That’s not permitted even for legislation governing a small claims court.) I suppose “and agreeable to good conscience” might at least cover situations where relevant misconduct on the part of a plaintiff or defendant precludes reliance on some right that would otherwise apply. Regardless of the limits of “good conscience”, s. 25 requires the judge in Blacklocks to decide the case on the basis of what was “just and agreeable to good conscience” on the basis that “good conscience” is an additional requirement.

    I suppose his analysis of breach of copyright law and was the just part. Did he do the “and agreeable to good conscience part”? I suppose the answer is implicitly yes in his rejection of the fair dealing defence and the award of punitive damages.

    I don’t now know if there’s ever been a decision explaining what “good conscience” means for the purposes of Small Claims Court jurisdiction. Does that mean the SmCC’s are courts of equity? Who knows. If I ever did, I’ve forgotten and I’m not inclined to go looking.

    As Angela Swan has often noted, scumbags tend to lose lawsuits. It’s clear that the Deputy Judge put the defendants in that category.

  8. I think Angela Swan is perceptive (here as elsewhere), but to say that someone who has been defamed has no right to find out what is being said is bizarre (even if it turns out to be accurate and defensible under defamation law, i.e. a defence of truth would work in an accusation of being a scumbag … a matter on which I have no opinion in the present case).

  9. Based on the reasons, I think your point went right over the Deputy Judge’s head.