Justice Roy confirms the centrality of Fair Dealing to the overall scheme of the Copyright Act, specifically in relation to the prohibitions around circumventing Technological Protection Measures, in the first Federal Court decision to consider the intersection of these provisions. In 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (Blacklock's 2024), the Court found, inter alia, that neither passwords nor paywalls are technological protection measures (TPMs) per se, and that the sharing by Parks Canada of licitly obtained passwords to access works behind a paywall that discussed the department, and thereafter dealing fairly with the works, did not violate the Copyright Act. The matter is part of a series of parallel cases involving the same plaintiff and different government of Canada departments. These disputes include the one underlying the earlier 2016 Federal Court decision in 1395804 Ontario Ltd. v. Canada (Attorney General), 2016 FC 1255 , wherein Justice Barns found the internal distribution by the Department of Finance of paywall protected articles in which it was mentioned qualified as a "fair dealing" and thus did not infringe Blacklock's copyright in the articles. However, the TPM provisions of the Act were not considered in that decision.
The outcome in Blacklock's 2024 affirms the Supreme Court's consistent, and now two decades old, approach to "fair dealing" as forming a critical part of the scheme of the Copyright Act, and one necessary to strikethe balance between copyright users and owners. It stands in contrast to the outcome in a 2015 Ontario Small Claims Court decision, wherein Blacklock's successfully argued that a password was a TPM under the Act, that the defendant's requesting a third party with a licit subscription obtain a paywall-protected article did circumvent that TPM, and thus the defendant could not avail itself of fair dealing (1395804 Ontario Limited (Blacklock's Reporter) v Canadian Vintners Association, 2015 CanLII 65885).
The decision in Blacklock's 2024
The regime governing "Technological Protection Measures" is set out in sections 41 to 41.21 of the Copyright Act. What is a TPM is defined in section 41 as "any effective technology, device or component" that "controls access to a work" or "restricts the doing ... of any act referred to in section 3 ...". The Court in Blacklock's 2024 found there was limited evidence whether the measures advanced by Blacklock's were in fact TPMs—namely passwords and a paywall. Justice Roy expressed skepticism that a "paywall" could, per se, be a TPM. He reasoned that the technology, device or component alleged to be the TPM must be "effective", and that while, "a paywall may be the result of some technology, device or component, ... it is not [itself] the technology device or component". Moreover, in the present case, the password used to access the content behind the paywall was licitly obtained. Use of such a password for the purpose for which it was obtained—i.e., to access articles—could not be considered a "circumvention" since it did not involve descrambling, decrypting, or otherwise avoiding, bypassing, removing, deactivating, or impairing the claimed TPM. Importantly, however, the Court recognized that an illicitly obtained password could produce a different outcome, and that its analysis did not extend to consideration of whether any remedies may follow for breach of contract or other terms of service.
In any event, the Court determined that because the use of the works at issue made by Parks Canada fell within the ambit of Fair Dealing in section 29 of the Act, no liability for circumvention of a TPM would arise. Justice Roy pointed to the Supreme Court's language in CCH Canada Ltd. v Law Society of Upper Canada, 2004 SCC 13, for the principle that fair dealing is "an integral part of the scheme of copyright law" and thus "always available". He thus found "specific exemptions for TPM do not...displace the fundamental pillar of copyright law that is fair dealing. If there is fair dealing, there is no infringement".
The intention of Parliament in enacting the TPM provisions as part of a suite of amendments to the Copyright Act in 2012 was also considered. Blacklock's argued these changes empowered owners to protect the works with any technological tool at their disposal. The Court dismissed these arguments outright, finding "clear language would be expected to be displaced altogether the fair dealing protection" and there was no such language. Nor did the Court find anything to support Blacklock's position in the text, context, structure or history of the amendments introducing TPMs.
Rather, having concluded that Fair Dealing is central to the scheme of the Act, the Court reasoned that language in section 41.1(2), which makes remedies for TPM circumvention "subject to this Act", in fact demonstrated that Fair Dealing must apply to the TPM regime because Fair Dealing, in and of itself, precludes liability under the Act:
Fair dealing has been found by authorities binding on this Court to be an integral part of a scheme, not a mere exception to the scheme or a defence to an infringement. It must be accounted for in considering the TPM provisions.
... the Act provides for a careful balance between the rights of owners of the works who must receive a just reward, especially because of the access now possible for copyrighted content in the digital world, and the use that must be possible to make in the public interest (CCH, para 23). This is integral to the needed balance between owners and users. That balance has been part of our law for two decades and Parliament was fully aware of its existence. Fair dealing was not a blank cheque before the amendments of 2012 brought about the TPM provisions, and there is no indication that the balance was to be upended in one direction or the other.
... [the provisions relating to] fair dealing and TPM were meant to co-exist in some harmony so long as the dealing is fair, which includes obviously how access to the work has been accomplished and the use of the content that followed, the balance between owners of copyrights and potential users of the works remains preserved. The ability of copyright owners to protect against the distribution of their works, which is made so much more broad scale in the digital world, is now a reality. But that cannot be if the cost is to negative fair dealing.
Conclusion
The Court in Blacklock's 2024 confirms that the Copyright Act, including the TPM provisions, must be read harmoniously as a whole. It provides a strong pronouncement that accessing content behind a paywall through a licitly obtained password for the purpose of Fair Dealing, should not attract liability under the Act whether for copyright infringement or circumvention of a TPM. For users, the decision represents a confirmation of the continuing trend among Canadian Courts to treat Fair Dealing as a "user's right" that plays a critical role in maintaining the balance between users and owners. For rights holders, the decision provides important clarification on the limits of the TPM regime. Following the decision, rights holders seeking to control access to and use of paywall-protected content would be well advised to consider additional and alternate means of controlling access and use of TPMs, for example, through contracts or terms of service.
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