(Wikemedia)
A recent decision from the Ottawa Small Claims Court in 1395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association (“CVA”), 2015 CanLII 65885 (ON SCSM) is raising some notable eyebrows, for example with Canadian law professor Teresa Scassa here and the redoubtable @glynmoody on the internationally widely read Techdirt website.
The decision deals with the issues of
whether a person without an account to a pay-walled website who receives a
“teaser” by email from the website publisher about an article of potential
concern to that person or his/her organization and who requests a copy of the
work in question from that website from a third party who does have an account
is infringing copyright, circumventing a Technical Protection Measure (“TPM”)
and can invoke a fair dealing defence in these circumstances. There was also a
claim for inducing breach of contract and punitive damages. The Court
came down heavily on the defendants on all issues. The Court found that the
defendants were liable for the cost of an institutional subscription in the amount
of$11,470 plus punitive damages of $2,000 plus costs.
A few points must be made at the
outset:
- Decisions of
the Ontario Small Claims Court, even if correctly decided, have minimal, if
any, precedential status – other than perhaps in a limited sense of
“comity” or “collegiality” amongst other small claims court judges in Ontario.
Under the doctrine of “stare decisis”, courts are bound to follow
decisions of higher courts to which their decision could be appealed. So, the Federal Court, the Copyright Board and even the
Ontario Superior Court are clearly not bound by a decision of an Ontario Small
Claims Court.
- In any event,
and with all due respect to the clearly well-intentioned and lengthy reasons of
the Deputy Judge (who is not an actual “Judge” but a lawyer who serves
part-time as Deputy Judge in the Small Claims Court) who wrote the decision,
there are many reasons to doubt that this particular decision was correctly
decided in all or even any material respects. It’s arguably an unwarranted and unprecedented
stretch of the law to conflate either asking someone for a copy or providing
someone with a copy with illegal “circumvention” of a TPM just because the work
is behind a paywall. It’s not even clear that the Blacklock’s paywall
constituted a TPM, as defined in the Copyright Act or
that there was any circumvention, as defined, in this instance or that any of
the activity alleged was prohibited by the legislation. Above all, as
Prof. Scassa states succinctly here, “Receiving and reading a copy of an article sent by
another person is not per se copyright infringement.” Her
conclusion is that “This decision is so entirely lacking in the balance
mandated by the Supreme Court of Canada that one can only hope it is nothing
more than a strange outlier.” There are other problems with the decision
as well, but I won’t get into them here and now. There’s no need for the moment
because it’s a Small Claims Court decision and is of virtually no precedential
consequence.
- In any event,
the Supreme Court of Canada made it very clear in the 2004 CCH v. LSUC decision that:
o “As an integral part of the scheme
of copyright law, the s. 29 fair dealing exception is always available.” (para 49)
o “The availability of a licence is not relevant to deciding whether a
dealing has been fair.” (para 70)
- Much else could be said about the
problems with the decision, but now is not the time or place. Anyway, once
again with all respect, it’s just a Small Claims Court decision.
There have been
a number of instances in which small claims court judges have written long
decisions in Canadian copyright cases. This is interesting, but ironic –
because these decisions don’t really count, for better or for worse. However,
this is understandable because these cases are probably much more interesting
to these judges than the usual types of cases that are handled in their courts.
And given the relative paucity of copyright jurisprudence in Canada, they are
clearly trying to be helpful.
An interesting
question is why this particular case wasn’t brought in the Federal Court –
either as an application or a simplified action. Given the amount of money at
stake, it could have been brought in either court. Moreover, the Federal Court
has procedures for dealing with applications and “simplified actions” that can
be fast and economical, while still allowing for adequate document production,
cross-examination or discovery as appropriate in advance of a hearing.
Indeed,
Blacklock’s has brought several other cases in the Federal Court. Here are 10
cases filed since mid-2014, mostly against the Federal Government or its
agencies and a couple of NGOs:
Court Number |
Style of Cause
|
Nature of Proceeding
|
'RE'
|
1395804
ONTARIO LTD. (Blacklock's Reporter) v. ATTORNEY GENERAL OF CANADA
|
Others -
Crown (v. Queen) [Actions]
|
||
1395804
ONTARIO LTD., operation as Blacklock's Reporter v. AGC
|
Others -
Crown (v. Queen) [Actions]
|
||
1395804
Ontario LTD. v. Canadian Transportation Agency
|
Copyright
Infringement [Actions]
|
||
1395804
Ontario Ltd, operating as Blacklock's Reporter v. Bank of Canada
|
Copyright
Infringement [Actions]
|
||
1395804
ONTARIO LTD. ET AL v. CANADIAN FOOD INSPECTION AGENCY
|
Copyright
Infringement [Actions]
|
||
1395804
ONTARIO LTD. ET AL v. ATTORNEY GENERAL OF CANADA
|
Admiralty
- Damage (Property & Facilities)
|
||
1395804
ONTARIO LTD v. CANADA (AG)
|
Copyright
Infringement [Actions]
|
||
1395804
ONTARIO LTD. v. SIERRA CLUB CANADA FOUNDATION ET AL
|
Copyright
Infringement [Actions]
|
||
1395804
ONTARIO LTD. v. FRIENDS OF CANADIAN BROADCASTING
|
Copyright
Infringement [Actions]
|
||
139504
ONTARIO LTD., OPERATING AS BLACKLOCK'S REPORTER v. AGC
|
Copyright
Infringement [Actions]
|
Some of these
have been discontinued, which may – though does not necessarily - mean that
there was a settlement. However, the cases against the Government are being
apparently vigorously defended – and some interesting defences are emerging.
It appears, on the basis of the Government of Canada's amended pleading (see below), that it is going to fight these cases on the basis, inter
alia, that Blacklock’s is allegedly a “copyright troll”, uses “teaser
emails that are designed to interest the department in reading and distributing
the Plaintiff’s articles”, engages in “speculative invoicing” and is engaged in
copyright “misuse”. The Government of Canada has just won a clear and
convincing procedural victory on a motion to amend its statement of defence to
plead along these lines – along with a costs order of $4,000 against Blacklock’s
on a procedural motion and a comment from the Court that:
The motion was contested, it was contested
extensively and it took a lot of time. There was a need for cross-examination.
In the course of the argument, I made comments to the effect that the
Plaintiff’s argument and choice of the way in which it chose to understand
questions or construed questions was obtuse to the point of being obstructive.
This is harsh
language and a very significant costs order as far as these things go. Here’s the Court’s Order dated
October 26, 2015.
Here is the Statement of Claim and Amended Statement of Defence in T-1391-14. This seems to emerging as the lead case.
Blacklock’s
appears to have become one of the most "frequent flyers", as it were, in Canadian copyright
litigation in the short time of just over one year. I cannot recall any single
party bringing ten lawsuits in the Federal Court in just over one year.
For those who
are unfamiliar, Blacklock’s is a relatively new online high priced media
service ($157 for a personal subscription and $11, 470 for an institutional
one) that, according to itself, “…covers news
you won’t find anywhere else: bills and regulations; reports and committees;
Federal Court and public accounts. We’re the only reporter-owned and operated
newsroom in Ottawa that finds the facts needed by business, labour and
associations.”
I have been
interviewed by Blacklock’s on at least one occasion. I must say that I will now
become rather reluctant to be interviewed again by Blacklock’s again, if the
allegations in the Federal Government’s amended statement of defence are true.
The business model
of a subscription based media service with a narrow and relatively small
audience with a timely need to know is a tricky one. It has been practiced to a
high level of apparent success and respect by the family owned Hill Times organization in Ottawa, since
1989, for a mostly Ottawa-centric audience of “Cabinet ministers, MPs,
Senators, political staffers, lobbyists, 'backroomers,' political junkies, and
some of the top decision-makers in the country, including influential players
in Parliament, Cabinet, the Prime Minister's Office, the Privy Council, the
Finance Department, Treasury Board, the Department of National Defence, the
Justice Department, and more.”
The Hill Times
organization seems to know how to successfully balance paper and online
publication and free and pay-walled material. I’m not aware of the Hill
Times ever having sued anyone for copyright infringement. I’m always
happy to be interviewed by and occasionally write for the Hill Times and its various
specialized offshoots such as the Wire Report or Embassy News. Nor have I
ever heard of large media organizations such as The Economist or the New York
Times ever suing anyone for sharing the occasional article that is behind a
paywall.
Speaking generally
and not about this or any other particular case, suing one’s customers – or
potential customers – is rarely a good business model, whether it be for
deterrence or, worse still, as a source of revenue or a business model. Ask the
RIAA how their campaign against a 12 year old child, a 71 year old
grandfather and a dead grandmother worked
out. Likewise, and again speaking generally and not about this or any other
particular case, there have been recent examples in the USA and UK where some
“troll” litigation has backfired badly.
Needless to
say, if any of these Blacklock’s Federal Court cases result in a judgment, this
would be something worthy of notice because it would potentially have
significant precedential value.
If CVA appeals the Small Claims Court decision,
things could get very interesting. The appeal would go the Ontario Divisional
Court, which, as copyright lawyers should know, delivered an excellent pro-fair
dealing ruling in 1997 in the Allen v. Toronto Star case
involving the reproduction on the front page of a Toronto Star edition with a
major article about Sheila Copps of a whole magazine cover from Saturday Night
Magazine featuring a picture of Sheila Copps. It’s not clear that it would be
cost beneficial for CVA to appeal the current decision, even if they win. But
if it does, it’s reasonable to expect some interest on the part of potential
interveners – on both sides of the fence. A decision of the Ontario Divisional
Court is one that could indeed have some precedential value.
In any event,
interested eyes are – or should be - on the Federal Court cases. If anyone
becomes aware of any other Blacklock’s litigation or threatening letters,
please feel free to let me know and pass along details, anonymously if you so
wish.
Anyway,
speaking of alleged copyright trolls, the hearing of Teksavvy’s quest in the
Voltage case to appeal the decision by Prothonotary Roza
Aronovitch of the Federal Court regarding TekSavvy’s claim to entitlement to
$346,480.68 in
which Teksavvy was awarded only $21,557.50 – about 6% of what it asked for
overall coming up on November 9, 2015. Although
CIPPIC is no longer active in this matter, it would be helpful if CIPPIC would
update its website regarding this case soon and post the most pertinent of the obviously voluminous
material filed in the Court so that folks who may wish to follow or attend the
hearing on November 9, 2015 can be better informed.
More to follow
without doubt on both Blacklock’s and Teksavvy soon.
HPK
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