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.