Tuesday, June 27, 2023

My ABC Copyright "Valedictory"

On 16/6/2023 I was honoured to give a keynote "Valedictory" address to the ABCCopyright  conference. Here are my slides. I hope I have encouraged some "militant librarians". Get ready for a major counterattack in fall re mandatory tariffs & fair dealing.


Monday, June 12, 2023

Blacklock’s Day of Reckoning?



For over nine years, Blacklock’s has pursued a remarkably determined litigation strategy that has involved nearly two dozen Federal Court lawsuits, including 13 against the Federal Government and its agencies. Its efforts against the Federal Government have been notably unsuccessful and none of its efforts against other parties have resulted in any successful legal precedents from Blacklock’s standpoint. On June 7-9, 2023, the Federal Court heard a summary judgment motion brought by the Government with a public interest intervention by CIPPIC that could bring this litany of litigation to the end.  The motion was heard by Justice Yvan Roy, a very thorough and experienced judge. and his decision is pending.

I’ve written about Blacklock’s litigation many times before. See here. I don’t normally comment on cases where judgment is pending – but this is an exception that calls out for comment because of its public interest importance and its unique long history.

The Attorney General of Canada (“AGC”) was represented by its counsel, Alexander Gay. Blacklock’s was represented by Scott Miller of MBM.  The intervener on behalf of the public interest was CIPPIC, represented by James Plotkin of Gowlings. These are all very experienced counsel.

Here are some brief point form observations based on the written material in the case. I did not actually attend the hearing, which was held “live” and was not virtual or hybrid, so it was not available via Zoom:

  • A very important case – as shown by the unusually great role of intervener CIPPIC in terms of length of memo (20 pages) and time – and hour and then extended. Indeed, having resisted CIPPIC’s involvement, Blacklock’s ultimately engaged – with an 18-page response of CIPPIC’s important public interest submissions
  • No hacking or decrypting involved here
  • No evidence of any attempt to “descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure” (highlight added)
  • The law does NOT clearly cover simple sharing of a simple password in the definition of “circumvent” found in s. 41
  • No mention in legislation of the word or concept of “to share”
  • Just sharing of simple lawfully acquired password by a government worker so she could do her research job and collaborate with colleagues
  • No evidence of actual copyright infringement or other listed examples of circumvention
  • No expert evidence that the TPM was “effective”
  • Like sharing a hotel pass key with family members - or alarm system password with renovation contractors or cleaning staff, who then shares it with their employees or subcontractors?
  • Even if there somehow was “circumvention” in this case, is it trumped by any absence of evidence of infringing reproduction or, very importantly, trumped by “fair dealing”?
  • No piracy – this is not about getting free movies or music – it’s about government engaging in perfectly legal fair dealing…

In any case, there is an important previous ruling in 2016 that Government’s use of Blacklock material was clearly “fair dealing. There was a strong finding of fair dealing on the part of Government that public servants were just doing their research as allowed by the Copyright Act….

1395804 Ontario Ltd. v. Canada (Attorney General), 2016 FC 1255 (CanLII), [2017] 2 FCR 256, <https://canlii.ca/t/gvrbx>

[33]      I am satisfied that the Department’s acknowledged use of the two Blacklock’s articles constituted fair dealing. There is no question that the circulation of this news copy within the Department was done for a proper research purpose. There is also no question that the admitted scope of use was, in the circumstances, fair.

Blacklock’s could have, should have, but didn’t plead circumvention at the time and are now trying with a new counsel to do so in numerous lawsuits against 13 other Federal Government departments and agencies and presumably many others.

BTW, here is the applicable definition of “circumvent”:

circumvent means,

(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner…(highlight added)

There is great interest in this case and the outcome is eagerly awaited.