Markwell Clarizio LLP

Federal Court Re-Iterates that the Fair Dealing Exception to Copyright Infringement is Fact Specific

On May 31, 2024, the Federal Court (Roy J) released its decision on the summary judgment motion brought by the Attorney General of Canada (“AGC”) on behalf of Parks Canada, in which he dismissed Blacklock’s Reporter’s (“BR”) copyright infringement action against the AGC. This matter is one of several related and contextually similar actions brought by BR against multiple Canadian government entities. 

1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General)

Of the issues raised, the focus of our blog will be the Court’s discussion of the fair dealing exception provision contained within section 29 of the Copyright Act RSC 1985, c C-42 (the “Act”). We will also briefly touch on the implications of the Court’s discussion concerning what constitutes a technological protection measure (“TPMs”) in the context of the application of the Act.

The facts of this case concern the distribution of news content available only on BR’s password protected website, limiting access to its articles to its paid subscribers. In 2013, a member of Parks Canada staff obtained a subscription to BR with the intention of sharing articles internally for what was determined to be non-commercial purposes. This activity is in line with the media-monitoring activities that federal entities participate in.

Our focus is on two of the issues in this case. BR’s position was that Parks Canada staff had violated the Act by distributing articles obtained from its site without consent. Further, BR alleged that the distribution of articles violated section 41.1(1)(a) of the Act, in that Parks Canada had intentionally circumvented the TPMs put in place by BR, the TPM being the password required to access the BR site. The AGC argued that its distribution constituted fair dealing pursuant to the exception outlined in the Act. Further, AGC’s position was that the sharing of a password to access a protected site did not constitute the circumvention of a TPM.

Citing the reasoning by Barnes J in what was referred to as one of the “test cases” for the issues in the case at bar (1395804 Ontario Ltd (Blacklock’s Reporter) v Canada (Attorney General), 2016 FC 1255, [2017] 2 FCR 256 (“Department of Finance”)), Roy J stated that Parks Canada did not infringe BR’s copyright. Parks Canada’s use for the articles accessed on BR’s site fell squarely within the meaning of the fair dealing exception outlined in section 29 of the Act.  The dealing of BR’s articles amongst Parks Canada staff members was entirely for the purpose of research, and the balancing of the eleven factors considered in the Department of Finance test case equally established that the dealing was fair.

Despite the straightforward conclusion drawn by the Court in this matter, the Court equally refused to state the conclusion too broadly, noting explicitly that cases concerning the application of the Act need to be dealt with on a case by case and fact specific basis.

The Court also refused to delve into the discussion of whether the password in this case constituted a TPM due to a total lack of evidence put forward by either of the parties. The Court did go as far as to say that in the case at bar, the password did not constitute a TPM because there was no need to actually circumvent any protection measure. The password was simply being used for the purpose intended for it by both the purchaser and the vendor, to gain access to BR’s articles.

Ultimately, this case stands as a reiteration of the fact-specificity of the application of the fair dealing exception, and stands as a cautionary tale for parties who bring issues before the Court without also presenting the Court with substantive evidence to support that party’s contentions.