Blacklock’s Reporter v Canada (Attorney General) and Password Sharing for Research Purposes

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In its decision in 1395804 Ontario Ltd (Blacklock’s Reporter) v Canada (Attorney General), the Federal Court reaffirmed the broad nature of the Copyright Act’s (“Act”) fair dealing exception for research and made clear that the licit acquisition and valid use of a password does not constitute the circumvention of a technological protection measure (“TPM”). In coming to its decision, the Court considered three main issues: rectification, fair dealing, and technological protection measures. The Court also relied heavily on a previous case, 1395804 Ontario Ltd, Operating as Blacklock’s Reporter v AGC (“Department of Finance”), in which the same plaintiff, Blacklock, similarly alleged copyright infringement against another federal department.

Background

Blacklock’s Reporter (“Blacklock”) is an online subscription news service. An officer at Parks Canada purchased a subscription to Blacklock and shared a password to this subscription amongst other officers in order to internally distribute Blacklock’s news articles that contained information regarding Parks Canada operations. Blacklock alleged that officers at Parks Canada used the subscription in a way that is contrary to the Act by obtaining, reading, and distributing news articles without proper authorization.

The decision discussed below arose from a summary judgement motion brought by the Attorney General of Canada (“AGC”). This decision represents what is essentially a “test case” because Blacklock has commenced similar claims against a number of federal departments and agencies, all of which have now been joined. The Court’s determinations will presumably inform how the other joined matters are treated.

Court Analysis

Firstly, the AGC asked for a declaration that there be rectification by the Court. The AGC claimed that there was no binding agreement between the parties, or there was a unilateral mistake on the part of Parks Canada, thus opening the door to rectification. The Court rejected the argument that since the terms of the agreement between Blacklock and Parks Canada were “barely perceivable to the naked eye and were never pointed out to the purchaser,” there was no consent by Parks Canada and thus no binding contract. Citing Canada (Attorney General) v Fairmont Hotels Inc, 2016 SCC 56, the Court also stated that rectification is limited to cases where the agreement between the parties was not correctly recorded in the instrument that became the final expression of their agreement. This demonstration was not made to the Court. Thus, the declaration sought for rectification was not allowed.

Secondly, the AGC sought a declaration that Parks Canada had not infringed Blacklock’s copyright by sharing articles acquired through the subscription. The Court determined that the material was used exclusively for a purpose consistent with the fair dealing provision of the Act, specifically, the use was fair dealing for the purpose of research. The Court made it clear that under fair dealing, the meaning of research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.

The Court relied largely on the analysis that it had already completed in Department of Finance, in which it had found that activities such as reviewing documents for error and misrepresentation constituted a proper research purpose. The Court outlined eleven factors related to the determination of fairness in a fair dealing case from the Department of Finance that also applied to the present facts. The Court determined that the activities conducted by Parks Canada after licitly obtaining articles directly related to its mandate and thus the operations constituted, as in the Department of Finance case, fair dealing.

Lastly, the AGC sought a declaration from the Court that no circumvention of TPM occurred in this case. The Court found that the sharing of a password does not constitute circumvention of the TPM, and that the fair dealing provisions of the Act are such that there was no circumvention under the Act.

The Court made it clear that specific exemptions for TPM do not displace the fundamental pillar of copyright law that is fair dealing, and if the goal of the TPM provisions was to allow copyright owners to unilaterally change the balance of copyright law completely, Parliament would have said so. The co-existence of fair dealing and TPM works to preserve the balance between the rights of owners of copyrights and potential users. There was no need to consider any further the circumvention of the password because there was no evidence of descrambling, decrypting, or efforts to otherwise avoid, bypass, remove, deactivate, or impair the TPM since the password was acquired licitly and used for the purpose for which it was created.

Conclusion

The Court ultimately determined that it was not disposed to grant rectification. However, it otherwise determined that Parks Canada was entitled to the declaration that having purchased the only type of subscription offered which allowed the acquisition of a password to access articles produced by Blacklock, Park Canada’s use of the password in the circumstances of this case constituted fair dealing under section 29 of the Act. The AGC was also entitled to the limited declaration that the licit acquisition and use of a password, if it is otherwise a TPM, does not constitute the circumvention of the TPM measures of the Act.

Allison Hardy
Summer Student at Fasken | Website

Allison is currently attending Western University, Faculty of Law. Prior to attending law school, she completed her Bachelor of Arts Honours degree at Queen’s University, graduating with distinction on the Dean’s Honour List. Majoring in Global Development Studies, Allison balanced her studies at Queen’s with community involvement, including working with the Queen’s Project on International Development. While at law school, Allison has been greatly involved in the Western Law community. She worked as a 1L Associate Caseworker at Western’s Community Legal Services Clinic serving members of the London community on a wide variety of files. Allison has also been involved with the law school’s Distinguished Speakers Committee and the Western Food Law and Policy Association. As a Research Assistant for faculty members at Western Law, Allison conducts research on Canadian foreign policy in international human rights law, public international law, and international refugee law.

Associate at Fasken | Website

Kiera Boyd practices in the area of communications, with a particular emphasis on copyright.

Kiera graduated from the Faculty of Law at the University of Western Ontario. Prior to law school, she completed an Honours Bachelor of Arts in English Literature with a minor in Political Science at Queen’s University. During her summers throughout school, Kiera worked as an Administrative Assistant at a large national firm, where she was part of the Intellectual Property Team.