paywall_nyt by Christoph Borer (CC BY-ND 2.0)

paywall_nyt by Christoph Borer (CC BY-ND 2.0)


Flawed Copyright Case Places Spotlight on Canada’s Digital Lock Problem

Does asking a friend for a copy of a newspaper article from a subscription website constitute copyright infringement? According to an Ottawa small claims court, it does.

The court recently issued a deeply flawed copyright ruling, providing a timely warning about the dangers of Canada’s restrictive digital lock rules that were enacted by the Conservatives over the strong objection of many copyright watchers.

My weekly technology law column (Toronto Star version, homepage version) notes that the case involved the president of the Canadian Vintners Association (CVA), who received an email from Blacklock’s Reporter, an Ottawa-based political publication, advising that he was quoted in an article discussing a recent appearance before a House of Commons committee. The man did not subscribe to the publication, which places its content behind a paywall, so he contacted a member of the association who was a subscriber and asked if he could see a copy of the article. When Blacklock’s Reporter learned that he had received a copy from the subscriber, it demanded that he pay for a full subscription or face a copyright infringement lawsuit.

While this does not sound like a copyright case, the Ottawa court ruled that the man had violated Canada’s copyright rules by breaching the publication’s paywall (an act it described as a circumvention of a digital lock) and awarded $11,470 in damages plus an additional $2,000 in punitive damages.

The Canadian digital lock rules were enacted in 2012 under pressure from the United States, which wanted Canada to mirror its safeguards on e-books, DVDs, and other digital content. Those rules typically cover circumvention of popular consumer products, but rarely involve website access. In fact, there are several U.S. cases that have concluded that sharing a valid username and password combination with someone else does not constitute circumvention for the purposes of the law.

Yet in the Blacklock’s Reporter case, the president of the CVA did not even try to access the publication’s site with someone else’s credentials. Indeed, it is difficult to see how asking for a copy of a lawfully obtained article could possibly be considered circumvention of a digital lock. Moreover, there is also a strong argument based on several Supreme Court of Canada decisions that providing the copy qualifies as fair dealing under Canadian copyright law.

As a small claims court ruling, the case has no value as precedent (and could still be appealed). However, it places the spotlight on the restrictive digital lock rules that have already caused a chilling effect within Canadian educational institutions, which often fear that circumvention for legitimate, educational purposes may violate the law.

The Conservatives established several narrow exceptions to the general prohibition on circumventing digital locks, but even they seemed to acknowledge that the exceptions are unnecessarily restrictive. Earlier this year, the government introduced a copyright bill to enhance access to materials for the blind which loosened the language in the digital lock exception for the visually impaired. Similar restrictive language can still be found in another exception for privacy protection.

While the Canadian exceptions were narrowly constructed and limited to a handful of circumstances, the U.S. has actually been expanding its digital lock exceptions. It recently introduced exceptions for car security research, repairs, and maintenance, archiving and preserving video games, and for remixing videos from DVDs and Blu-Ray sources.

Canada has the power to introduce new digital lock exceptions, but has yet to do so. During the final stages of the copyright reform process in 2012, the Liberals supported an amendment to expand the digital lock exceptions to cover circumventions for all lawful purposes. As Liberal MP Geoff Regan noted when speaking in support of the change, “what the government seems to want to do is preserve old models and ignore the fact that we have moved into a digital world.” Regan cited comments from software developers, librarians and archivists who all warned of the dangers of overly restrictive digital lock rules.

The Blacklock’s case may be an extreme example of digital lock rules gone wrong, but the case demonstrates that the wrong-headed approach has real-world negative consequences. When the copyright reform debate returns to Parliament Hill, the Liberals best chance to fix the problem is to follow their own advice by permitting circumvention for lawful purposes.


  1. David Collier-Brown says:

    The process described in

    is interestingly similar to one used by “copyright trolls” in the US: post a movie anonymously, see what computer downloads it, use a Norwich order to get the person’s name from their IP address, then threaten to sue unless the person settles out of court. In this case they’re using access to information in place of the Norwich order.

    Not only does it look like a bad decision, it also looks from the limited information as if we have someone trying to use Canadian courts to help them do “speculative invoicing” (as the polite British say), or “trolling” (as our US cousins say)…

  2. Pingback: 2 – Flawed Copyright Case Places Spotlight on Canada's Digital Lock Problem - Exploding Ads

  3. David Collier-Brown says:

    Returning to your main thesis, the judge’s decision is consistent with the narrowest interpretation of copyright: since one person gave another a copy, they have committed the same psuedo-crime a professor and a student commits when the professor copies an article for his class.

    The recipient didn’t make the copy, so that can’t claim they copied it for research.

    This starts us down a terrible trail of pilpul that make it insanely hard for a private person (like me!) to know what the law actually requires.

    We need a lawgiver to take away the trash and establish a clear and obvious rule, like “the preceding DRM clause does not prohibit any lawful use”

  4. Devil's Advocate says:

    While it’s true we need to straighten out our copyright laws, still, even according to the laws in place now, this judgement is wrong!

    There are two people involved here – the one who legally acquired the content, and the one who it was shared with. Since copyright is not supposed to be prosecuting the people who didn’t “copy the content, or “make it available”, the only possible conviction should have been issued to the one who extracted and shared the content in the first place.

    It’s like the difference between “uploading” and “downloading” a shared file. The “downloader” is not the one who “made the content available”. Pursuing everyone who downloads content bears tremendous implications for the whole Internet. What then?… Do we go against precedence and start criminalizing people for publishing links??

    Copyright needs to die.

  5. Alternative article title: Man fined $13000 for borrowing newspaper…

  6. Once upon a time, I downloaded a whole, semi-interesting technical book…noticed the copyright notice, and at best a distant association between the uploader and the copyright holder, and therefore asked the uploader if he had permission, which he did not….resulting in the download being removed. I also deleted my copy.

    Now, according to this judge, I should be liable for infringment??? How was I supposed to know it was copyrighted when I downloaded it?

    Yup: Man fined $13K for borrowing newspaper!

  7. EU want to copyright the hyper-link.

    csis has already declared once-pubic material secret and locked up reporters for having copies.

    region one and two censorship zones want the TPP takedowns to censor news. (eu + amercias, dvds)

    ottawa small claims wants (spam?) punishable by …
    death, obviously. Naturally.

    linking to stolen copies is now a (corperate) crime, i guess.


  8. Pingback: Small claims court case with wider copyright implications « Quotulatiousness

  9. Pingback: WAIRT 9-13 Nov 2015 | Steve's Aussie blog