Michael Ford
Intellectual Property

Decision creates bizarre scenario preventing fair dealing

A recent Small Claims Court decision vindicates those who said the 2012 digital lock amendments to the Copyright Act were too broad, Toronto intellectual property lawyer John Simpson tells Law Times.

As the article reports, 13595804 Ontario Limited (Blacklock’s Reporter) v. Canadian Vintners Association (CVA) centred around a subscription-only news publication focused on the workings of Parliament, which quoted the president and CEO of the CVA. Although the CEO was concerned about “inaccuracies” in the preview, he was unable to see the full story behind the paywall, and asked a subscriber friend to send him a copy.

When he contacted the publisher to discuss the story and disclosed how he managed to view the article, the CEO soon received a letter alleging a breach of copyright, as well as an invoice for two subscriptions. After refusing to pay, Blacklock’s took the case to Ottawa Small Claims Court, winning $11,5000 plus $2,000 in punitive damages, says the article.

Deputy Judge Lyon Gilbert ruled that the fair dealing exception to copyright infringement was not available to the winemakers’ group “because it had violated the new technological protection measure provisions of the Copyright Act when bypassing the online publication’s subscriber paywall to access a news article,” Law Times reports.

The decision, says Simpson, principal of Shift Law, “creates a bizarre scenario where a copyright owner could prevent any fair dealing of their work from occurring simply by setting up a restrictive paywall, which undermines the fundamental concept of copyright law in Canada.”

“There was an argument that it should be left to the courts to get it right,” Simpson adds. “Now the first one to have a chance is a Small Claims Court judge who probably doesn’t have much experience dealing with copyright matters, and is encountering some pretty poorly drafted legislation, and you have a perfect storm for getting it wrong.”

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