Small Claims Court Makes Some Big Decisions about Fair Dealing and TPMs

In the recently released decision 1395804 Ontario Limited c.o.b. Blacklock’s Reporter v Canadian Vintners Association, the Ottawa small claims court ruled in an interesting way on fair dealing that might have some far-reaching implications if nothing overrules it. Reading a strict interpretation of CCH and the Copyright Act, deputy judge Lyon Gilbert reached the conclusion that circumventing technological protection measures (TPM) precluded any possibility of fair dealing, creating the bizarre legal scenario that any copyright owner might be able to prevent fair dealing from ever taking place by setting up paywalls and restrictive terms and conditions.

Blacklock’s Reporter is an Ottawa news reporter that grants access to its articles via a subscription service. After it reported on a court decision relating to the CVA, personal defendant Dan Paszkowski and a colleague became alerted to the article on the premise that it might contain factual inaccuracies. Without a subscription, they resorted to contacting an acquaintance with access, who provided them with a cut-and-paste copy for them to examine. Once Blacklock’s became aware of this, they requested that both individuals purchase subscriptions. Their claims went ignored.

Before delving too deeply into the evidence, the biggest thing to take away from Blacklock’s is that under the court’s reasoning, access must be lawful before any use can take place. Though the size of the claim merited an action in Small Claims Court, the analysis leaves much to be desired – Gilbert DJ making a number of errors, such as continually referring to fair dealing as a ‘defence’ against breaching copyright. Most importantly, when running the fair dealing analysis (clearly outlined in CCH Canadian Ltd. v. Law Society of Upper Canada as the consideration of six distinct factors), the court appeared to confuse these factors with the bad faith considerations of an assessment of damages under s.38.1(5). The Court’s eventual conclusion was that if the material was not obtained legally ‘and with colour of right’, then fair dealing was not available, and the analysis should not even run that far.

Although the Court noted that the Act should be read in light of the modern approach to statutory interpretation in that an act should be read harmoniously as a whole (Bell Express Vu), Gilbert DJ’s analysis separates out TPM circumvention as a separate offence altogether from breach of copyright, as opposed to a method of breach. Whereas another court may have determined TPM circumvention in light of fair dealing, this decision not only appears to take a somewhat backwards stance, but it also extends the coverage of TPM circumvention to asking someone for a copy of an article that is behind a paywall.

Supporters of strong copyright protection may well be impressed with the decision, but it’s important to note that the Copyright Act characterises fair dealing as an ‘exception’ as opposed to a defence. Such a view is especially pertinent given the facts of the case – investigating an article to check and possibly correct factual inaccuracies would appear to fall squarely within the research provision of section 29.

CCH calls for fair dealing to be interpreted broadly, taking into account the purpose, character, and amount of the dealing; the availability of alternatives, and both the nature of the work and the effect of the dealing on the work. It also makes clear that fair dealing should always be available. Finally, in CCH, the court notes that fair dealing should not be limited to non-commercial contexts, and that the allowable purposes of research, private study, criticism or news reporting should not be given a restrictive interpretation, but that courts should “attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work” [para 54].

For Gilbert DJ, that assessment incorporated its own use requirements, as he stated “credibility is an issue given the fact that their ultimate reason for obtaining the material in the first place was to challenge statements made therein and the alleged importance in so doing, once received, nothing came of it. Their stated objective therefore is disingenuous.” Although he recognises that research and private study should be interpreted broadly, the failure to follow through with attempting to make corrections to the article was fatal to the defendants in this case. Such reasoning seems difficult to comprehend – if the article was unavailable to access, how could the defendants know they had a meritorious claim to have it corrected? It appears that the only answer, in the Court’s view, is for users to accept the transaction costs regardless.

 

Andrew Hunter is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

One Comment
  1. The court’s decision to focus on the unlawful access and sidestep a proper fair dealing analysis is problematic and contrary to decisions of the Supreme Court. The small claims court held that this use could not be ‘private study or research’ because the defendants did not take any resulting action following access. This restrictive view of research has little legal basis, if any, and is contrary to CCH, where fair dealing was championed as a user’s right which must not be interpreted restrictively. The Court has since construed ‘private study or research’ broadly (e.g. in SOCAN v Bell) and never indicated that one must ‘use’ every work one comes across in the course of that research. Holding that the circumvention of any TPM invalidates fair dealing is similarly restrictive, and potentially limits the free dissemination of information, as any content creator might then be able to circumvent any fair dealing of their work by installing a digital paywall, while the same use and sharing with third-parties of their printed works would be largely unrestricted. The Court has repeatedly commended the Internet’s capacity to disseminate information (e.g. in Crookes v Newton) and said that it must be protected and facilitated. While the ease of digital reproduction arguably necessitates some form of TPMs, creating significantly more restrictive rules for sharing of the same information on the Internet than what may apply to printed works is contrary to the spirit of fair dealing.

    The Federal Court ruled along these lines on Nov. 10, 2016 and properly applied the broad scope of fair dealing that the Supreme Court has established. It found that the use of the plaintiff’s articles or their circulation within the defendants’ organization constituted fair dealing as research.

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