Canadian Ruling: Paywall Doesn't Exempt News from Fair Use

By Carolyn Hersch posted 12-19-2016 23:18


In Canada, a court recently ruled that a paywall does not exempt news agencies and publishers from Canadian fair use rules.

Fair dealing is the Canadian version of fair use in the United States.  The concepts of fair use and fair dealing are similar, in that fair dealing provides an exemption from infringement for the use of protected works for purposes like research, education, parody, satire, criticism, and news.

In this case, an online news agency, Blacklock's Reporter, a publication geared towards policy wonks, claimed that Canada's Department of Finance violated fair dealing by passing along two articles without authorization.  Although subscribers don't have carte blanche to use copyrighted material without consent, users can use the articles under the fair dealing portion of copyright.  The publications terms and conditions were not evident, but contained an ambiguity about distribution.  The subscriber of the publication thought that the articles had inaccuracies, and passed it along to other colleagues for confirmation. 

The court rejected Blacklock's claim that distributing articles would be detrimental to their business model.  The ruling stated "All subscription-based news agencies suffer from work-product leakage.  It also goes without saying that whatever subscription model Blacklock's employs, it is always subject to the fair dealing rights of third parties.  To put it another way, Blacklock is not entitled to special treatment because it's financial interests may be adversely affected by the fair use of it's material."

The government tried to claim that the litigation was abuse by a copyright troll, but the court disagreed. 

The ruling also sought to reassure that it's reasoning for this case would not be an endorsement of more legitimate copyright abuses, like sharing passwords or widespread distribution. 

The text of the decision can be found here.