Fair Dealing User’s Right Is Available Despite a Technological Protection Measure

Much concern was expressed on whether a technological protection measure could be used despite the fair dealing user’s right to effectively lock up a work forever.

Some parts if the answer to this issue have been found by the Federal Court in 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829.

This case came to the Court by an unusual procedure. The day before the plaintiff, Blacklock’s Reporter, dismissed its claim of copyright infringement against Parks Canada, Parks Canada filed an application for summary judgment and a counterclaim. After the Court established that the counterclaim could proceed, the Court examined the facts.

The Facts

Parks Canada obtained a subscription in its name for Blacklock’s Reporter. Parks Canada was provided with a password. Several staff of Parks Canada used the password to study articles published by Blacklock’s Reporter and to identify errors in the reporting.

Blacklock’s Reporter sued Parks Canada for copyright infringement and for circumventing a technical protection measure, being the password.

Brief Procedural Background

This is one of many cases brought by Blacklock’s Reporter against Federal departments and agencies. The plaintiff’s allegations are similar among these cases even though the allegations of the copyright infringing activity varies from copying to transmission of articles within the entity. The various departments and agencies all subscribed to Blacklock’s Reporter and took the view “that the subscriptions purchased were used to share within the organization articles to conduct research, media monitoring, verification of accuracy or consideration of whether a response was required.”^[1]

The many actions were stayed pending the resolution of a “test case” involving the Department of Finance. The resolution of the “test case” did not resolve the various actions but did find the Department’s use was fair dealing.^[2]

The next action in the queue was that involving Parks Canada. The AG made a motion bring a counterclaim and seeking dismissal of the technical protection meausre cliams and a declaration that “an order confirming that the use of articles obtained through a subscription constitutes “fair dealing” in the circumstances of the case.” …”[t]hat is because “fair use” is an exception to the TPM provisions. The obtaining of a subscription gives access to a password that can be shared in pursuit of the “fair use”.^[3]

The Court Reviews the Evidence

As noted, a media official in Parks Canada bought a subscription to Blacklock’s Reporter in the name of Parks Canada. There was only one kind of subscription available and the Court found that the subscription was properly in the name of Parks Canada. There was ambiguity in the subscirption form and the Terms of Use and that was interpreted against Blacklock’s Reporter to find that the subscription permitted Parks Canada to share articles within the organization.

The Court found that Parks Canada had lawfully acquired the articles and used them for the mandate of Parks Canada.

The Court noted on the issue of fair dealing the result was the same as in the Department of Finance case:

It bears repeating, nevertheless, that as stated by the Supreme Court in CCH, the fair dealing in a case like ours requires that the dealing is for the purpose of research, and that it be fair (para 50). In the case involving the Department of Finance, Barnes J concluded that the very same type of activities in that case as in the case at hand constituted dealing for the purpose of research, one of the purposes recognized by section 29 to constitute a dealing. Indeed the Supreme Court considered that “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained” (para 51). There is no reason to depart from the conclusion reached in the Department of Finance case (para 33) where Barnes J concluded that the same kind of activities as those proven in the case at bar constituted a proper research purpose.^[4]

On the issue of whether there was breach of a technical protection measure (TPM) the Court noted

The TPM must be a technology, device or component that must be effective in controlling access to the work or restricting the doing of some act. The notion of effective applies to technology, device or component. Whether the TPM is alleged to be a technology, a device or a component, each must be “effective”; the qualifier does not apply only to the technology.^[5]

After noting an absence of evidence on the issue of whether a password would constitute a TPM the Court noted

The Court is satisfied that the use made of the articles accessed through the validly obtained password constituted, on the facts in this record, fair dealing according to section 29 of the Act. Fundamentally, Parks Canada did not circumvent what is presented as an effective TPM. It used the password licitly obtained for the purpose for which it was created: gaining access to articles located on a website. Once the articles were obtained, they were used in a manner consistent with recognized fair dealing.^[6]

The Court noted that the term paywall was used but no evidence was introduced as to what it was. The Court noted:

A paywall may be the result of some technology, device or component, but it is not the technology, device or component. The paywall is not the TPM. It protects against unauthorized intrusions and is part of a business model. That protection is not jeopardized by Parks Canada purchasing a subscription for the purpose of research constituting fair dealing. In the case at bar, there is no circumvention of a TPM simply because the password was not circumvented: it was properly obtained and used for a legitimate purpose.^[7]

The Court noted that the TPM provisions are part of and are subject to the Copyright Act. That includes the fair dealing user’s right which is an integral part of the Act. The Court noted that:

What is the purpose then of the TPM provision? The proverbial “elephant in the room” question was in my view completely answered by CIPPIC at paragraph 42 of its submissions, which I reproduce here:

1. 42. The TPM Provisions’ purpose was to better enable digital copyright owners to enforce copyright in the online environment. They provide an additional remedial arrow in the copyright owner’s quiver where an infringement occurs in a digital context “to better address the challenges and opportunities of the Internet”. They were not intended to effectively enlarge copyright protection for digital works by allowing owners to employ TPMs to defeat fair dealing, an inherently non-infringing activity. [footnotes omitted]

Fair dealing precludes liability under the Act. Other sources of liability may be created, including by contract. If the goal of the TPM provisions was to allow copyright owners the ability to unilaterally not only to alter the balance, but to change it completely in the face of the state of copyright law, the expectation can only be that Parliament would have said so. It did not.^[8]

The Court summarized the result.

In view of the conclusion that I have reached on the issue of whether fair dealing and TPM were meant to co-exist in some harmony so long as the dealing is fair, which includes obviously how access to the work has been accomplished and the use of the content that followed, the balance between owners of copyrights and potential users of the works remains preserved. The ability of copyright owners to protect against the distribution of their works, which is made so much more broad scale in the digital world, is now a reality. But that cannot be if the cost is to negative fair dealing.

The open issue of whether a password constitutes a TPM was not addressed by evidence in this case. The Court noted that it was not a circumvention of a TPM to lawfully acquire a password and use it for its intended purposes.

It will suffice to conclude that the very use of the password, which arguably couldconstitute a TPM, can hardly be the circumvention of itself when used as it was meant to be used.^[9]

The case reinforces that fair dealing is an integral part of the Copyright Act. A TPM and fair dealing exist together.  It also suggests that those who rely on password-protected paywalls should re-examine if the password is a TPM if they want to rely on the anti-circumvention provisions of the Copyright Act.

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^[1] See 395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para. 5.

^[2] See 1395804 Ontario Ltd (Blacklock’s Reporter) v Canada (Attorney General), 2016 FC 1255, [2017] 2 FCR 256.

^[3] See 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para 9.

^[4] See 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para 99.

^[5] See 395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para 114.

^[6] See 395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para 119.

^[7] See 395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para 121.

^[8] See 395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para 130.

^[9] See 395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2024 FC 829 at para 133.