Jan 2, 2017

Browsewraps, fair dealing and Blacklock’s Reporter v Canada: a critical commentary

1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), [2017] 2 FCR 256, 2016 FC 1255 (CanLII)

Blacklock’s Reporter is a small Canadian online news agency. Like many publishers it has challenges in enforcing its copyrights against unauthorized digital copying. To protect its rights it uses a subscription model to license content. It attempts to keep materials from unauthorized access and distribution by using a paywall.

Recently the Federal Court in 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2016 FC 1255 concluded that the copyright in Blacklock’s news articles was not infringed when copies of articles lawfully obtained under a subscription by one subscriber were emailed to the Department of Finance and were then forwarded to others within the department. The court found the copying was a fair dealing, an exception from infringement under the Copyright Act.

The decision is important as it addresses both the enforceability of (online) browsewrap agreements and the scope of the fair dealing copyright exception for research. The decision contains many troubling findings and statements about the law which leaves one questioning whether the decision was correctly decided.

I wrote a detailed blog post with a critical commentary of case Browsewraps, fair dealing and Blacklock’s Reporter v Canada: a critical commentary http://www.barrysookman.com/2017/01/02/browsewraps-fair-dealing-and-blacklocks-reporter-v-canada-a-critical-commentary/.