Judge Says Gov’t Department’s Sharing Password to Access Articles Was ‘Fair Dealing’

A Federal Court judge has ruled on the use of a legally obtained password to share news articles from behind a paywall. (The Canadian Press/AP, Jenny Kane)

A Federal Court judge has ruled that a government department’s sharing of passwords to access Blacklock’s Reporter articles doesn’t infringe on Canada’s Copyright Act.

The decision stemmed from the sharing of a password by Parks Canada employees to access news articles from the publication, which is a subscription-based news organization based in Ottawa.

A Parks Canada manager bought a subscription to Blacklock’s Reporter and then shared the password with a limited number of employees. Court documents

Court documents say the subscription was used to access articles related to Parks Canada in case corrections were needed.

In his decision, Justice Yvan Roy wrote that in purchasing a subscription and acquiring the password needed to access articles produced by Blacklock’s Reporter, “Parks Canada’s use of the password in the circumstances of this case constitutes fair dealing under section 29 of the Copyright Act.”

Justice Roy said the “licit acquisition and use” of the password as “a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.”

The court decision, released on May 31, said the manager paid $148 for a subscription using a Parks Canada Agency credit card and address. The media organization launched the action, saying the manager’s actions violated copyright laws.

Justice Roy argued that the subscriber had no reason to think that sharing articles with people who were “affected” by them would violate the copyright law, and added that the terms and conditions of the subscription were not easily found on the publication’s website.

“Indeed, the Terms and Conditions were found by our Court to be ambiguous which results in the drafter of the conditions to be bound to the most favourable interpretation to the user of the copy,” he wrote.

“Parks Canada’s interest in articles published by BR was limited to those involving the Agency and the sharing of them, and only them, was limited to the personnel that might contribute to a response or further communication, if needed.”

Blacklock’s Reporter’s shareholders said in a statement that accessing the publication’s content without purchasing a subscription amounts to stealing.

“Since 2016 we have tramped in and out of Federal Court hearings to uphold Canadian publishers’ centuries-old right to sell subscriptions and prosecute shoplifters. We were naive. The biggest corporation in the land, the Government of Canada, gained new powers to steal from the littlest publisher,” the statement said.

“Federal media meddling is now complete,” the statement added. “Paid media get the carrots – $29,750 employee rebates, 15 percent subscription tax credits, six-figure ‘media monitoring’ payments and $94,000 cash-for-coverage–and independent publishers get the stick. Carefully scrutinize the self-interest of anyone who claims otherwise.”