1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2016 FC 1255

In this action, the Plaintiff ("Blacklock's") alleged that officials in the Department of Finance violated its copyright by obtaining, reading and distributing two of its news articles without authorization. The Defendant ("Attorney General") argued that Blacklock's conduct was a misuse of copyright and that the conduct Blacklock's complains about constituted fair dealing. For the purposes of this matter, the Federal Court found that it need only decide whether the impugned conduct was protected under the fair dealing provisions of the Copyright Act and, in particular, section 29.

The Court accepted that Blacklock's had established that its copyrighted material was used by the Department without payment or consent; these facts were also admitted by the Defendant. Therefore, the Attorney General had the burden to establish, on a balance of probabilities, that this acknowledged use was protected by section 29 of the Act.

The Court noted that fair dealing by a user of copyrighted material is a well-recognized right under the Act. In reviewing the jurisprudence, the Court discussed relevant considerations in applying the fair dealing provisions. The Court was satisfied that the Department's acknowledged use of the two Blacklock's articles constituted fair dealing: the circulation of this news copy within the Department was done for a proper research purpose and the admitted scope of use was, in the circumstances, fair.

In applying the fair dealing provisions, the Court agreed that the deliberate breach of the accepted terms of access to and use of copyrighted material, whether protected by a paywall or not, was a relevant consideration. The Court noted however, that the owner of copyright must establish that the terms of use actually prohibit the access or distribution in question and that the person involved was aware of the limitations. In this case, the Court found that Blacklock's failed to ensure that its subscribers were aware of the Terms and Conditions it sought to impose.

The Court dismissed Blacklock's infringement action.