iStock_000033506622SmallA recent decision from the lowest court of the Province of Ontario has raised questions over how recent amendments to Canada’s Copyright Act regarding “technological protection measures” (“TPMs”), such as subscription “paywalls”, will be interpreted and balanced with traditional copyright analysis.

In 1395804 Ontario Limited (Blacklock’s Reporter) v. Canadian Vinters Association, the central question considered was whether asking someone to provide you an article from a service that is behind a paywall constitutes copyright infringement?

In this case, court answered that, yes, it does.

What Are They Saying About Me?

The plaintiff, Blacklock’s Reporter is a news organization that provides articles to its paying subscribers. The defendants were an association of Canadian wine producers, the Canadian Vinters Association, and that association’s President and CEO, Dan Paszkowski.

As part of its service Blacklock issues “teaser” articles to entice individuals and corporations to subscribe. The defendants received one of these teaser articles. It showed that an article had been published that contained quotes from Mr. Paszkowski’s testimony before a government committee. At the time, neither defendant held a Blacklock subscription. Instead, Mr. Paszkowski asked a colleague who did have a subscription to forward him a copy of the article.

After reviewing the article, Mr. Paszkowski contacted Blacklock to discuss the contents of the article. In response, Blacklock sent a letter advising that there had been an infringement of copyright and invoiced the defendants a subscription fee. The defendants refused to pay on the grounds they had done nothing wrong. This action was then initiated. The defendants argued they were not liable because,

  • there was no infringement of copyright, generally; and
  • there was no infringement of copyright because the defendants sought out the article for educational and research purposes such as to constitute “fair dealing”, an exemption under the Act.

The ruling in this case turned on a recently amended section of the Act. Under Section 41.1 , it is a breach of the Act to “circumvent” a TPM,

No person shall (a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41…”

A TPM is defined as

… any effective technology, device or component that, in the ordinary course of its operation,

(a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or

(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.”

Obtained Without Colour of Right

In coming to its decision, the court made a factual finding that:

access to the full article was obtained without colour of right and without permission from the author or publisher. It must be kept in mind that the Defendants embarked upon a course of conduct explicitly designed and coupled with the intent of obtaining an article which was not available openly, transparently and without taking steps otherwise open only to subscribers.”

As a result, “the Defendants took steps which they knew or ought to have known were contrary to the process required by the paywall…”

Based on the foregoing, the court held that the conduct of the defendants constituted the circumvention of a TPM, and therefore infringed Blacklock’s copyright.

Regarding the defendant’s claim to the fair dealing exception, the Court held that in this case the fair dealing exception did not apply because the defendants did not legally obtain the material, and therefore could not avail themselves of the exception. Further, the defendants’ did not undertake “research or private study” so as to be captured by the exception, despite contacting Blacklock regarding the content of the article.

A Broad Interpretation

On its face, this decision appears to mean that any individual who requests a copy of a work from beyond a paywall from another individual who has legitimate access to such works constitutes a “circumvents a technological protection measure”, and therefore breaches of the Act. But this interpretation is inconsistent with how copyright has been interpreted in the context of physical works, prior to the enactment of Section 41.1.

The incident in this case was not a traditional infringement of copyright, since the defendants did not produce, reproduce, or publish Blacklock’s work or a substantial part thereof; they merely obtained a copy of it. Such receipt of a work has rarely if ever constituted infringement of copyright, in the face of non-technological protection measures. Should the recent addition of Section 41.1 mean that because a work was behind an electronic paywall rather than some other barrier change the analysis?  The subscriber in this case had a right to access the work in question, and accessed it appropriately. This is not a case where the defendants tried to access an account with another’s credentials, or otherwise “hacked” the paywall.  It may be more accurate to say it was not the TPM that was circumvented, but the plaintiff’s scheme for monetizing its content.  The distribution of a work which is licensed through a subscription will undoubtedly have contractual obligations on the part of the subscriber, but this is a separate determination from the copyright issue.

In addition, this decision raises practical questions regarding what steps have to be taken to avail yourself of the fair dealing defense. The court here seemed to find that there was no fair dealing because the defendant never followed through on research or public study. This leaves open the question of what concrete steps the defendants should have undertaken, presuming some concrete must be necessary. What recourse is there for individuals who are alerted that they are in some way the subject of an article that is beyond a paywall? Is it now incumbent on an individual to obtain a subscription to confirm the accuracy of the paywalled articles of which they are the subject of? Will you have to pay to confirm you and your business are being portrayed correctly?

As stated above, this case is from the lowest court of Ontario. Therefore, it is not binding on any court. But notwithstanding its precedential value, this decision raises live questions about the proper interpretation of Section 41.1 of the Act, and the balancing of TPMs and user rights.