Attorney General of Canada has achieved a clear victory against Blacklock’s
Reporter in the latter’s attempt to collect damages of $17,209.10 based upon its
supposed institutional subscription rate because a few public servants in the
Department of Finance received, read and distributed two Blacklock’s articles
about a file they were closely involved in that had been sent to them by a
Here’s the judgment from Justice Robert Barnes – which is unequivocally
favourable in terms of fair dealing and even pushes the envelope further by
emphasizing that what went on here was
based upon a “legitimate business reason” on the part of the subscriber/sender
to the material and a “legitimate business purpose (i.e. to consider whether the
stories required a response or correction)” on the part of the Department.
clearly rejects the essence of Blacklock’s argument, which was tantamount to
asserting that copyright includes the exclusive right to “read” copyrighted
material. The judgment does not deal directly with copyright misuse or abuse,
though it does note certain “troubling” aspects of Blacklock’s business model
and mentions the allegation that this “litigation constitutes a form of
copyright abuse by a copyright troll.”
 To resolve this matter I need only decide whether the conduct Blacklock's impugns is protected under the fair
dealing provisions of the Act and, in particular, section 29. Although there are certainly some troubling aspects to Blacklock's
business practices it
is unnecessary to resolve the Attorney General's allegation that this litigation
constitutes a form of copyright abuse by a copyright troll.
(highlight and underline added)
are other takeaway quotations from the judgment, which was promptly and decisively
delivered by the very experienced Justice Barnes in less than two months from
the end of the hearing:
finding the scope of use of the articles to be fair I have considered the following factors, all of which
favour the Defendant’s position:
articles were legally and
appropriately obtained by Ms. Marsden who was a paid subscriber to
Blacklock’s. Blacklock’s website was not hacked or accessed by illicit means.
In the result, the articles were no longer behind Blacklock’s paywall when the
Department obtained them.
(b) Ms. Marsden sent the articles to Mr. Halley for a legitimate business
reason (i.e., to protect her business reputation and to manage her
working relationship with the Department);
(c) The Department
received the articles unsolicited and used them (i.e., read them) for a legitimate business
purpose (i.e., to consider whether the stories required a response or
articles were circulated among only six Department officials all of whom had a reason to see them;
(e) No commercial advantage was sought
or obtained by the Department’s use of the articles nor were they republished
in any form;
(f) The two articles represented
only a small fraction of the protected news copy on Blacklock’s website
and one of them was shortly-after publically exposed on Blacklock’s website;
articles contained information obtained from the Department in response to Mr.
Korski’s queries. As a
source, the Department had a direct and immediate interest in their content.
Indeed, a finding of
copyright infringement against a news source for the simple act of reading the
resulting copy is likely to have a chilling effect on the ability of the press
to gather information. Such a result cannot be in the public interest;
Halley and Ms. Rubec had a reasonable basis for their concern that the articles
misrepresented some of the information they had conveyed to Mr. Korski and that
a correction might be warranted. The involvement of their colleagues in a possible follow-up was, in the
Ms. Marsden nor the Department were aware of, or agreed to, Blacklock’s Terms
and Conditions. In any event and as noted below, those provisions did not
unambiguously prohibit the circulation of Blacklock’s copy for personal or
non-commercial purposes. If
Ms. Marsden, as a subscriber, had the right to use and distribute the articles
for a non-commercial purpose, those who received the articles lawfully could
reasonably expect to enjoy the same privilege;
(j) What occurred here was no more
than the simple act of reading by persons with an immediate interest in the
material. The act of reading, by itself, is an exercise that will almost always
constitute fair dealing even when it is carried out solely for personal
enlightenment or entertainment; and
(k) While the
public interest is served by the vigilance of the press, copyright should not
be a device that serves to protect the press from accountability for its errors
and omissions. The
Department had a legitimate interest in reading the articles with a view to
holding Blacklock’s to account for its questionable reporting.
(highlight and underline added)
As to Blacklock’s
business model, Justice Barnes explicitly stated that Blacklock’s own argument “is essentially an admission that the market
places little value on Blacklock's work-product” and a clear confirmation that,
whatever the business model, “it is always subject to the fair dealing rights
of third parties”:
 Blacklock’s maintains that this case
challenges the viability of its business model including its right to protect
news copy behind a subscription-based paywall. The suggestion that Blacklock’s business cannot survive
in the face of the minor and discrete use that took place here is essentially
an admission that the market places little value on Blacklock’s work-product.
All subscription-based news agencies suffer from work-product leakage. But to
customers who value easy, timely and unfettered access to news that may not be
readily available from other sources, the price of a subscription is worth
paying. It also goes
without saying that whatever business model Blacklock’s employs it is always
subject to the fair dealing rights of third parties. To put it
another way, Blacklock’s is not entitled to special treatment because its
financial interests may be adversely affected by the fair use of its material.
Nothing in these reasons should however be taken as an endorsement of arguably
blameworthy conduct in the form of unlawful technological breaches of a
paywall, misuse of passwords or the widespread exploitation of copyrighted
material to obtain a commercial or business advantage.
(highlight and underline added)
judgment does not deal directly with TPMs – technical protection measures - or
circumvention, despite Blacklock’s efforts. The issue was not pleaded and the Court
refused to hear evidence or argument directed to that issue as such.
Government gets costs, and there is a comment from the Court that “offers to
settle may have been exchanged”, which may mean that the Government will be
entitled to get “double costs” for some or all of this litigation, depending on the timing and content of any offers. We shall see and report in due course.
in all this is a very clear victory for the Attorney General of Canada and for
the cause of fair dealing in Canada. A business model “is always subject to the
fair dealing rights of third parties.”
Because a fair dealing analysis is
essentially based on fact-finding, and because the fact-finding here was
extensive and careful, it is would seem that a successful appeal would be an unlikely
possibility. I will update in the event that a Notice of Appeal is filed, which
would be due on December 12, 2016. It remains to be seen what effect this
judgment will have on the many other outstanding Blacklock’s lawsuits against
the Government of Canada, some of its agencies and others.
Government was represented by Alex Kaufman and Orlagh O’Kelly from the
Department of Justice. Blacklock’s was represented by Yavar Hameed.