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Fair Dealing Week 2016

02/22/2016

University Copyright Advisor

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This week—February 22-26—is Fair Dealing Week. To mark this celebration, a new Fair Dealing Week tab is now part of the Copyright website.

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Federal Court rules on whether use of a lawfully acquired password circumvents the Copyright Act's technological protection measures

On May 31, 2024, the Federal Court of Canada delivered its decision in 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General). Blacklock's, a subscription-based news service, alleged Parks Canada infringed its copyright by purchasing a subscription to particular Blacklock's news articles and sharing the password to those articles with several Parks Canada employees. Representing Parks Canada, the Attorney General counterclaimed that use of the articles constituted fair dealing, and did not breach the Copyright Act's prohibition against circumvention of technological protection measures (TPMs). After noting that a TPM "must be a technology, device or component that must be effective in controlling access to the work or restricting the doing of some act," the Court said it was " satisfied that the use made of the articles accessed through the validly obtained password constituted, on the facts in this record, fair dealing according to section 29 of the Act." The Court further observed that "fair dealing has been found by authorities binding on this Court to be an integral part of a scheme, not a mere exception to the scheme or a defence to an infringement. It must be accounted for in considering the TPM provisions." On the issue of whether use of a password can constitute circumvention of a TPM, the Court said, "The ability of copyright owners to protect against the distribution of their works, which is made so much more broad scale in the digital world, is now a reality. But that cannot be if the cost is to negative fair dealing." The Court thus ruled that, in order to maintain the Act's careful balance between the private and public interests in the scheme of copyright, "the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act." ...

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