Fair Dealing Still Treated Broadly By Canadian Courts

Copyright is broad and limited. What do I mean by that apparent oxymoron?

Anything covered by Canada’s Copyright Act enjoys a wide range of protections. This includes books, movies, computer software – almost anything that is written or recorded, and even some more transient creations. The protections include the exclusive right to prohibit others from doing things like copying, translating, renting or telecommunicating.

This is broad already, but it also includes everyday things that most of us would not even think about in a copyright context. For example, how many times a week do we forward an email to someone else? Whether it is a joke or a piece of business correspondence, this happens frequently. Many would be surprised to learn that it is often a technical copyright violation to do this.

Of course, there are exceptions, such as consent. Other exemptions are less certain, however, and they include something called “fair dealing”. The extent of fair dealing has been the subject of several Supreme Court of Canada decisions in recent years, and was the focus of a Federal Court of Canada decision on November 10, 2016: 1395804 Ontario Ltd., Operating as Blacklock’s Reporter v. Canada (Attorney General) 2016 FC 1255.

In Blacklock’s, the plaintiff operated a news gathering site that was protected by a paywall. This is common in the industry, and requires payment of a fee in order to access content. An article was written concerning a federal government department. Someone who was concerned about the content and wanted to share it with the department in question paid the paywall fee, copied the article, and forwarded it to ministry officials. Some officials reviewed the article for content but it was not broadly distributed within the department, or outside of it.

Blacklock’s claimed that this distribution constituted copyright infringement and sued under the Act. There was no dispute that the article had been shared but the government claimed fair dealing exempted them from infringement.

Under the Act, users are permitted to infringe copyright protections in some cases, including where the purpose of use is “research, private study, education, parody or satire.” The government’s claim here was that the use was research.

Mr. Justice Barnes of the Federal Court ruled there was no liability in this case because it constituted fair dealing. While the decision is interesting, it does highlight a few points that should be kept in mind in copyright situations:

a)     Copyright infringement is very easy to fall into. As noted above, things we do every day are often technical infringements. While there may be reasons why they are rarely prosecuted, that does not mean that the infringement is meaningless. Reproducing anything that was produced by another person can potentially lead to infringement.

b)     Fair dealing continues to be interpreted expansively. The Supreme Court has consistently held in recent years that “fair dealing” is to be given a broad interpretation. For example, they have considered “research” to be almost any kind of fact gathering exercise, beyond the limited scope of academic or business arenas. This reflects that copyright is not intended to be a restriction on the dissemination of ideas or information, and any attempt to do so may be met with resistance.

c)      “Fair” still means something. The Federal Court highlighted several factors that were present in Blacklock’s and that may be important to take advantage of the fair dealing defence. For instance, much was made of the fact that the distribution within the government department was limited to those with a need to know. If there had been wide scale distribution or sending it outside the department the results may have been different.

Does the Blacklock’s case mean that paywalls are useless? No. But the court did find that the Terms and Conditions which Blacklock’s used were not sufficiently drawn to the attention of the subscriber and she did not know of the restrictions which the news organization was imposing. Even if she had, the terms drafted were unclear and likely not precise enough to prevent the use in this case. So anyone using a paywall should not only take pains to make sure subscribers are aware of the terms, but also carefully pay attention to the wording.

Blacklock’s is not an earth-shattering case but it does illustrate the tendencies of Canadian courts to expand fair dealing protections for users. Those exemptions are not unfettered and there still are rights to be balanced between content owners and users. Careful attention to the rules must be applied in advance, however.