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

In a victory for the principle of fair dealing, the Federal Court last month dismissed the copyright infringement lawsuit by subscription news site Blacklock’s Reporter against the federal Department of Finance.

Readers may recall that Blacklock’s Reporter alleged that a staff member at the Department of Finance shared two paywall-protected articles with five of her colleagues, thereby breaching copyright. The company was seeking $17,209 in damages. You can read more about the lead-up to the case in our previous blog post Blacklock’s Reporter – Paywalls and Fair Dealing.

In 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), Justice Barnes resolved the matter by attempting to determine whether the actions of staff at the Department of Finance constituted fair dealing or whether it was in fact a breach. Fair dealing for the purposes of research, criticism, review or news reporting is a well-recognized right, and is protected under section 29 of the Copyright Act. After weighing up the facts and previous case law, Justice Barnes concluded that the department’s use of the articles was for the purpose of research, and that it did in fact constitute fair dealing.

He detailed a number of factors that support his conclusion, including:

  1. The articles were legally and appropriately obtained by a paid subscriber
  2. There was a legitimate business reason for viewing the articles (to determine the accuracy of the content)
  3. No commercial advantage was sought or obtained by the Department’s use of the articles
  4. As a named source in the articles, the Department had a direct and immediate interest in their content
  5. What occurred was a simple act of reading, which will almost always constitute fair dealing
  6. Copyright should not be a device that serves to protect the press from accountability for its errors and omissions. In this case, the department had a legitimate interest in reading the articles with a view to holding Blacklock’s to account for its questionable reporting.

Justice Barnes also emphasized that, just like any other news outlet, Blacklock’s Reporter’s business model is subject to the principle of fair dealing and is not entitled to special treatment.

This was the first time that paywall-protected content has been tested in the Federal Court. Blacklock’s has filed more than a dozen actions against federal government departments and crown corporations. The company has had success in the court in the past, so it remains to be seen how those cases pan out.

To learn more about copyright and the principle of fair dealing, 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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