A couple of weeks ago I provided my interpretation of the results of the recent Federal Court case, Blacklock’s Reporter v Attorney General of Canada. My main objective was to call out the twisting of that decision by those claiming the result means that fair dealing trumps the protection provided under the Copyright Act to TPMs (Technological Protection Measures, aka “digital locks”). In other words, debunking the assertion that as a result of this decision, it is legal for a user to bypass or circumvent an access control TPM in order purportedly to exercise their rights under fair dealing. As I explained, the court did not so rule for the simple reason that it concluded that the user, a Parks Canada employee, did not circumventthe TPM because she had obtained access licitly through purchase of a subscription. The issue at bar was that the password thus obtained was then shared with a couple of dozen or so other employees of Parks Canada and other Canadian government departments for “research”, an identified fair dealing purpose.

The judge concluded that the terms of the subscription were sufficiently ambiguous to permit the interpretation that sharing the password was not an infringement, and thus did not constitute circumvention. He was also unwilling to conclude that a password constitutes a TPM, absent expert testimony. He then went on to assess whether the use fell within the four corners of fair dealing, concluding that it did both in terms of purpose and form of use. As controversial as this decision may have been in terms of determining that sharing a licitly-obtained password granted for a single subscription was not an infringement because the end use was fair, as well as failing to accept that a password authorized by the copyright owner that controls access to content is not a TPM, the decision nonetheless did not legitimize the circumvention of a TPM on the basis of fair dealing. Thus, I concluded the Court had upheld the principle that fair dealing does not trump a TPM, or, put another way, the Court did not overturn that principle.

Then, noted copyright lawyer Barry Sookman weighed into the debate, posting his views on the decision, “Understanding subscription licenses, fair dealing and legal protection for TPMs in Canada: A critical commentary of the Blacklock’s Reporter Parks Canada decision”. Sookman’s legal deep dive into the case is a much more detailed analysis than my own although he also concludes that, among other things, the decision did not rule that fair dealing trumps the Copyright Act’s anti-circumvention prohibition regarding TPMs. He also disputes the Court’s fair dealing analysis, concluding that since access was not licitly obtained, there can be no fair dealing. According to his analysis, it was not obtained legally because there was breach of contract. Based on his review of contract law and precedents, Sookman concludes (unlike the decision reached by the judge in the case), that Blacklock’s Terms of Service were binding on Parks Canada. You can read his arguments for yourself.

One sure way to know how persuasive these points are would be for Blacklock’s to appeal the case, although this seems unlikely unless a source of funding appears. As Blacklock’s noted in a posting shortly after the decision was announced,

“We are a small business like a million others. We have spent eight years and $538,665 fighting the Attorney General and Federal Court to uphold property rights. FC 829 should be appealed to the Supreme Court, but large corporations and trade associations relying on electronic commerce cannot leave it to Blacklock’s alone to litigate the definition of “password” in Canada in the digital age. Parties interested in joining an appeal with financing should contact counsel: Scott Miller, c/o MBM Intellectual Property Law. 275 Slater Street, 14th Floor, Ottawa K1P 5H9.”

Will anyone step forward? The Attorney General for Canada has deep taxpayer-funded pockets. Blacklock’s does not. This is David v Goliath.

Sookman’s analysis suggests there are solid grounds for an appeal, but to me the most important element of his blog post relates to policy direction rather than legal arguments. He concluded his analysis by noting the discrepancy between the Government of Canada’s aggressive pursuit of Blacklock’s and its professed support for Canadian journalism. The government, through the Attorney General of Canada (AGC, i.e. the Department of Justice), not only very aggressively defended the suits Blacklock’s brought against government departments but went beyond a defence, seeking a declaration from the Court that a password is not a TPM and that its use does not constitute circumvention, in effect seeking to gut the TPM provisions of the Act. (The Court declined to make such a declaration). Moreover, when Blacklock’s tried to discontinue the action, the government continued to pursue the case, instituting a motion seeking declaratory relief that the Agency did not breach Blacklock’s Terms of Service or infringe copyright based on a fair dealing defence.

This is the same government that constantly speaks of the need to maintain a viable media sector and which has undertaken several initiatives with the declared intent of doing so. Perhaps the most visible, and possibly most controversial, is the Online News Act, Bill C-18, that sought to impose an obligation on large US-based social media platforms, to wit Google and Meta (Facebook/Instagram), to negotiate good faith content sharing agreements with Canadian media for the platforms’ use of news content, failing which the government would impose binding arbitration. Most people are familiar with the decidedly mixed outcome of that exercise, with Meta “complying” with the legislation by blocking links to Canadian news content on its sites while Google agreed to contribute $100 million annually to media in Canada, to be disbursed through a hastily formed entity, the Canadian Journalism Collective. The funding subsumes Google’s earlier voluntary licensing agreements with some media companies. The Collective is expected to dole out about $17,000 annually per working journalist from this fund. Meanwhile news links remain blocked on Facebook and Instagram.

Another government attempt to obtain additional funds comes through a second recently passed piece of legislation, the Online Streaming Act, Bill C-11. The CRTC has taken early action to require an initial “downpayment” from foreign streaming services operating in Canada, part of which will go to support the Independent Local News Fund. Then there are tax credits such as the Canadian Journalism Labour Tax Credit for a QCJO (Qualified Canadian Journalism Organization).

There has been some pushback against financial support for media from governments, streamers, and social media organizations, primarily from a few prominent journalists worried about compromising the independence of the Fourth Estate. See Andrew Coyne’s recent comments (“Please stop helping us: the newspaper bailout is a comprehensive policy failure”) in the Globe and Mail. Although many in the media industry do not agree with his perspective, Coyne has a point. The media, newspapers like the Globe and Mail and National Post, specialized journals like Blacklock’s, recreational publications like the Walrus or Maclean’s, or various other online publications, should be able to stand on their own feet and earn revenue from the valuable content they provide. If that content is not worth paying for in the eyes of consumers, why produce it? But a business model that is based primarily on getting paid by consumers for the content they consume is not viable if media products are free for the taking by anyone claiming “fair dealing”. That is nothing but a licence for piracy.

If you click on the link to the Coyne opinion piece above, unless you have a digital subscription to the Globe, you will run into their paywall. You will be invited to register for a few free articles, but more specifically you will be encouraged to subscribe, with a very attractive initial offering (at the moment, $7.96 a month, before tax) that after a set period of time will revert to the more normal subscription price of about $32 a month. That is how the Globe can afford to pay Coyne and run its business. You can even use the Globe content that you access through your paid subscription for fair dealing purposes, for example by making a copy of a reasonable amount of that content for research, private study etc. However, it you were an employee of a large organization, (like a federal government agency or department for example), and a number of employees of your organization needed access to the Globe to stay current on issues, to track what the public is reading, or to anticipate questions that ministers might be asked, etc., one would normally expect that rather than having just one subscription for members of that organization, there would be an institutional subscription that reflects the true usage of the content. For example, Parks Canada has almost 6000 employees. The federal government in Canada has almost 300,000. A smaller organization, like the Department of Canadian Heritage, (that is spearheading policy initiatives to “save” journalism in Canada) has almost 2000 employees. Some specialized agencies (Copyright Board of Canada, for example) have just a handful. (The Copyright Board has 25). One would expect that an institutional subscription would be tailored to the number of users.

One would not expect that a large government department would purchase exactly one (1!) subscription and freely share it among any employees who might need access to the content, using fair dealing as the pretext. But that is what happened to Blacklock’s Reporter. That is what Department of Justice lawyers, representing Parks Canada, (an agency of the Government of Canada, the same government that is touting its support for professional journalism because of the important role it plays in our democracy) argued was their right to do. Rather than siccing the legal dogs from the Justice Department (representing the Attorney General of Canada) on a news organization like Blacklock’s that investigates and reports on what is going on in Ottawa, the Government of Canada should walk the talk of its policy to support responsible journalism in Canada and pay fairly for the content it uses rather than hiding behind a specious expansive interpretation of fair dealing. The actions of the government are reminiscent of the tactics used by educational institutions in Canada to avoid compensating authors and publishers for widespread copying of content for use in teaching under the guise of “educational fair dealing”.

Not only has the Attorney General taken a hard line on this case, it has also tried to blacken Blacklock’s reputation by accusing it of entrapment and being a copyright troll. Blacklock’s had to resort to Access to Information requests to learn how many government employees had accessed the single subscription they had authorized. The judge in the Blacklock’s case explicitly dismissed these allegations, noting that Blacklock’s had no intent to deceive.

As Barry Sookman concluded in his blog post,

“It is high time the Government decides whether it wants to win its suits with Blacklock’s at all costs and in the process create precedents which undermine news services and other cultural industries in Canada or do the right thing and support Canadian news publishing. A good start would be revisiting its legal argument and if this case is appealed, think about what it is really trying to accomplish.”

There are lots of precedents where the Justice legal dogs have been called off for policy reasons, among them the $20 billion settlement on First Nations child welfare. The Canadian Human Rights Commission ruled that the federal government had chronically underfunded child welfare services on Reserves and ordered restitution. The federal government appealed the Commission’s order for payment and challenged the tribunal’s orders in the Federal Court. The Justice lawyers were prepared to fight to the bitter end. But then political realities intruded and common sense prevailed, the appeal was paused and negotiations leading to the settlement were undertaken. The government’s legal stance was way out of synch with its stated policy positions.

The same is true in this case and it is high time the Government of Canada stopped saying one thing but doing another. It’s time to walk the talk in Ottawa.

This article was first published on Hugh Stephens Blog