October 16, 2015
Blacklock’s v Canadian Vintners Association et al 2015 CanLII 65885

The plaintiff news corporation provides subscription based material to its customers. The plaintiff alleged that an article it published and that was available online to its subscription customers, only, was obtained without colour of right by the corporate defendant through the efforts made by the personal defendant.

The corporate defendant is an association representing Canadian wine producers and states its mission is to advocate on public policy issues on behalf of its members. The personal defendant is the corporate defendant’s President and Chief Executive Officer.

The defendants took the position that they accessed the full article using a third party which had a subscription, that copyright was not breached, and that their purpose in seeking out the full text was for educational purposes and that their actions constituted fair dealing, an exemption under the Copyright Act.

Deputy Judge Gilbert relied on section 41.1(1) of the Copyright Act which prohibits the circumventing of a technological protection which uses an effective technology to control access to a work and found that the defendants obtained copyrighted material belonging to the plaintiff illegally.

Gilbert also cited Section 29 of the Act, which sets out the defence of “fair dealing”. And, he relied on CCH Canadian Ltd. v Law Society of Upper Canada in his decision, citing the six factors that must be considered when assessing whether a dealing is fair.

On the issue of “fair dealing”, Gilbert states at paras 54-58:

54. Having reviewed the case law authorities cited to me and considering the scheme and policy objectives of the Act and most importantly section 41.1 (1) thereof, it is patently clear that unless you have obtained the material legally, you cannot avail yourself of the defence of fair dealing for the purpose of education, criticism or review. The facts in CCH and the law cited therein make it perfectly clear that you must first obtain the material legally and with colour of right.

55. The Defendants do not meet the test set out in section 29.1. in that the source of the material was not mentioned along with the other particulars required to be stated.

56. The CCH case describes what constitutes fair dealing. Fair dealing under section 29 of the Act requires that the dealing is either for research or private study, and that it is fair. Research is to be given a broad meaning and so must the term “private study”. Although the facts do not support a finding that the Defendants genuine purpose was for research or for private study given they did not carry through with that purpose once they received the article, and giving them the benefit of the doubt, can it be said that their dealings were “fair”? As stated by the SCC, whether something is fair is a question of fact and depends on the facts of each case. Nonetheless the SCC has guided the Court’s consideration of this question by outlining a set of factors to be taken into account as stated in paragraph 29 supra.

57. As stated above, it cannot be said that the purpose here was genuine given the fact that nothing came of the research (obtaining the full article) once obtained. Giving the Defendants the benefit of the doubt here that the intention was genuine, the follow through was not. The character of the dealing is not favourable to the Defendants. They obtained the material illegally and persisted until the court Order was made in keeping the source hidden from the Plaintiff. They were given an opportunity to pay for the work even after accessing it illegally and chose not do so. They had alternative processes available to them to challenge the accuracy of the statements but chose not to use them or engage the Plaintiff in a discussion thereof. They knew that the publication had economic value upon which the Plaintiff relied and bypassed the paywall to obtain it. The nature of the work was important to the Plaintiff nonetheless because of its economic value to the Plaintiff. The effect of the dealing was to deny the Plaintiff due consideration for its time, cost and effort in publishing the work, making it in the eyes of the Plaintiff an economic and commercial venture. Although the Defendants did not disseminate the work widely, it came to the attention of the organization’s governance leaving it open to wider distribution. It must be remembered that the corporate Defendant had in mind its own economic and commercial value in accessing the material as it was seeking to maintain its credibility as a lobbyist with government, and to protect its member’s financial interests.

58. In conclusion and for the foregoing reasons, the defence of fair dealing is not available to the Defendants.