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Nelligan O’Brien Payne gratefully acknowledges Paul Taylor-Sussex, in writing this blog post.

We encounter copyrighted products every day of our lives. Copyright is there to protect the creator, and give them the legal right to decide how their work is reproduced, published or distributed. However, sometimes we infringe that copyright, either deliberately or inadvertently. But are all infringements created equal?

The Federal Court last month heard a divisive case involving the Government of Canada and Blacklock’s Reporter, an Ottawa-based subscription news site that covers politics, bills and regulations. Blacklock’s claims that in October 2013 a staff member at Finance Canada shared two paywall-protected articles with five of his colleagues, thereby breaching copyright.

This trial was the lead case in a series of actions initiated by Blacklock’s Reporter in the last few years, all of which alleged unlawful access and distribution of their copyrighted material. The defendants mostly include federal government agencies and Crown corporations.

Some question the motivations of Blacklock’s, who has been dubbed a “copyright troll”. It has been alleged that the company lures people at government agencies by sending teaser emails for paywall-protected content – often with incorrect or misleading information – and then suing them if they access the article without first subscribing.

The trial is important, as it is the first time the Federal Court has tackled the issue of copyright as it pertains to paywall-protected content.

Blacklock’s Reporter has had some success. Last year, Small Claims Court in 395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association decided in their favour. In that case, the president of the Canadian Vintners Association was made aware of an article published by Blacklock’s that featured a quote by him. He asked a co-worker, who had a current subscription, to access and send him the full article. Blacklock’s learned of this breach, and demanded he pay for a full subscription or face a copyright infringement lawsuit. When he refused to pay, the dispute made its way to Small Claims Court. The Court ending up agreeing with Blacklock’s, and awarded it $11,470 in damages, plus an additional $2,000 in punitive damages.

This decision has been heavily criticized. Internet and E-Commerce Law expert Michael Geist called it a “deeply flawed copyright ruling”, and believes the case highlights how outdated Canada’s rules are for digital locks. John Simpson, founder of IP law firm Shift Law, said the ruling “creates a bizarre scenario where a copyright owner could prevent any fair dealing of their work from occurring simply by setting up a restrictive paywall, which undermines the fundamental concept of copyright law in Canada”.

The outcome of the Federal Court case will have serious implications for how unauthorized access to paywall-protected content is treated, and what constitutes fair dealing in this context. Watch this space for further updates!

If you have more questions about copyright, contact our Intellectual Property Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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