Copyright, Fair Dealing and Paywalls

When the paywall “protected” Blacklock’s Reporter sued the Government of Canada for an alleged copyright violation, the court concluded:

[8] Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department’s limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.

The Honourable Mr. Justice Barnes, Blacklock’s Cost Award 20161221125911759

Howard Knopf summarizes the lawsuit thusly:

“The Attorney General of Canada has achieved a clear victory against Blacklock’s Reporter in the latter’s attempt to collect damages of $17,209.10 based upon its supposed institutional subscription rate because a few public servants in the Department of Finance received, read and distributed two Blacklock’s articles about a file they were closely involved in that had been sent to them by a Blacklock’s subscriber.”

my Canadian copyright symbolCopyright law in Canada is at minimum confusing to most non-lawyers, even those of us involved in content creation. As a self publishing author, and to some extent a citizen journalist, it is important that I have more than the barest understanding of copyright law. Like most self publishing bloggers lacking legal staff, I’d rather be writing than spending time in court, so when in doubt I’m inclined to self censor for my own protection, something known as copyright chill. Since I’ve been actively weighing copyright law as it applies to me and my own work (since Canada’s 2010 Copyright Consultation), I am always interested in how copyright issues play out.

So I was particularly curious about what Justice Robert Barnes described as the “obviously applicable” fair dealing protection.

(j) What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment;

The Honourable Mr. Justice Barnes’ Judgement and Reasons
re: BLACKLOCK’S REPORTER (Plaintiff) and CANADA (Defendant) [download PDF]

In other words reading (or by extension viewing, or listening to) copyrighted material is allowed under Canada’s Fair Dealing provisions, even when such material is locked behind a paywall. Sharing such material is another matter. A large part of the reason the subscriber who shared the articles was not held liable seems to be Blacklock’s failure to adequately spell out in its terms of service what a subscription does or does not allow. Although the judgement draws attention to the fact:

(k) While the public interest is served by the vigilance of the press, copyright should not be a device that serves to protect the press from accountability for its errors and omissions. The Department had a legitimate interest in reading the articles with a view to holding Blacklock’s to account for its questionable reporting.

The Honourable Mr. Justice Barnes’ Judgement and Reasons
 re: BLACKLOCK’S REPORTER (Plaintiff) and CANADA (Defendant) [download PDF]

Excess Copyright tells us:

“…the amount claimed by the Government, which was “$115,702.30, based on 70% of the actual value of professional hours expended in the defence of the claim and including disbursements of $7,020.98.”

Blacklock’s Must Pay $65,000 for Litigation that “should never have been commenced let alone carried to trial”

Although Mr. Knopf views this as a victory, from my perspective it’s not.

Although I am not a lawyer, there seems to be a suggestion that, had the TOS been worded differently, the subscriber’s decision to share the articles– in spite of holding the publisher to account– such an action may well have been construed as illegal copyright infringement, specifically circumventing Technical Protections Management (TPM). The plaintiff sought to make this latter argument, but the Judge didn’t allow it.

To my mind, the biggest problem with copyright law is the court system.  Fighting a copyright claim in court wouldn’t only eat into an independent creator’s time, if it costs $115,702.30, $65,000 or even the two thousand dollar settlement the Government offered would be beyond the means of most.
Court engraved in courthouse wall

It doesn’t matter whether a copyright infringement lawsuit has merit or is spurious. The Government of Canada may have the wherewithal to fight such matters in court, but this is hardly true for the vast majority of citizen journalists, self publishers or bloggers.  Because copyright battles are fought through the legal system, creators, bloggers and self publishers are at an enormous disadvantage to large well funded multinationals or copyright trolls with predatory business models.

There are some websites I access that are partially locked behind paywalls, but publish some articles publicly. I decided a long time ago I don’t want to share links to sites that are locked behind paywalls, or even registration walls, because I don’t want to compel my readers to have to sacrifice their money or privacy to be informed. Because of this, I have made it a point not to subscribe to any paywalled site, simply to ensure I don’t share such links inadvertently.  But now I am wondering, are subscribers aware that sharing information — perhaps even in a quotation — from such sites risks charges of copyright infringement?    If so, it is surely a disincentive to subscriptions.


Copyright Fallacy #5

A Maple leaf enclosed in the copyright symbol

CLAIM: Copyright Protects Creators Work

REALITY: Not true for most creators.

We have this idea that copyright provides some kind of magic protection to the work we write, draw, film or compose. Yet the reality is that the only way for creators to assert our “rights” under the copyright monopoly, is by going to court.
Which can become very expensive.

When I began writing, I learned that all Canadian creative work was automatically covered by copyright. A standard practice to prove ownership and provide documentation was to mail a copy of the work to yourself, and keep it in the sealed envelope against the day you might need to assert your copyright in the work. The sealed envelope was supposed to prove the work existed on the date verified by the government postmark.

Of course, nowadays I don’t know how successful that would actually be, since postal automation means that a lot of mail doesn’t actually get postmarked, or if it is, not legibly. Worse, these days Canada Post doesn’t offer any reasonably priced shipping options.

When I began writing spec television scripts, and submitting them to American television production companies, I took the precaution of first registering them with the Writers Guild of America.  Canada Post then offered a service called “return receipt requested”, which meant a bright pink postcard was added to the exterior of the package. When the package was delivered, someone had to sign the postcard, which then went back through the mail to me. An ingenious system that provided a nice physical receipt. In the event I wanted to issue a copyright challenge, I would have a chain of evidence.


Like the United States, Canada also has a Canadian Intellectual Property Office, and you can register your work there for a $50 or $65 fee. It isn’t very much, right?

Of course, it could get awfully expensive for a haiku poet or a short story writer. Or any creator, really. Fifty dollars is a lot when publishers still mostly pay pennies a word. There is no doubt in my mind that most Canadian creators don’t register their copyright in light of CIPO’s high fees. Why bother, when everything we create is automatically protected by copyright anyway. Yet CIPO gets registrations.

I am quite sure they get copyright registrations from publishing companies. From record labels. And from film and video production companies. Just not much from the people who actually created the works.  Unlike most creators, these companies have money to spend… money earned from copyright.

what if…

…you think George Lucas copied Star Wars from the script you sent him?  If you do, copyright law won’t magically hand over a 2 billion dollar cheque.  First, you have to hire a lawyer, and then you have to prove it in court.   You must have evidence that (a) George actually opened your envelope and (b) actually read your idea.   Even if you could prove this, how long would it take in court?

Copyright only works the way we think it works for those creators who can afford to use the court system.  Americans can prosecute a lawsuit in the United States if they convince a lawyer the claim has merit and the lawyer is willing to take the case on spec in exchange for a hefty chunk of the settlement.   So if your American Lawyer believes your lawsuit might be winnable, s/he may take it on for the twenty or thirty years that George’s lawyers would be able to stall.

However, lawsuits work a little differently in Canada. Canadians have to pay our lawyers every step of the way, so lawyers don’t take cases on spec.   It makes no difference if you are in the right, if you run out of money the case is closed.

It stands to reason that if $50 was too steep a price to pay to register your script, paying legal fees over decades will be too costly for most Canadian creators.  Because most Canadian creators don’t make a living from our creative work; we need day jobs to pay the rent.


Copyright law is not magic, the only way it “protects” writers is by allowing us to sue anyone who infringes our copyright. Would I sue a company I’d sent my work to if I thought they had infringed my copyright?

If I did, I might get a wildly lucrative settlement. But would it be enough to live on for the rest of my life? Because the very real effect of any such suit would be that no other production company would ever dare risk opening an unsolicited manuscript from me ever again. Lawsuits are sometimes seen as quick and easy way to make money, but it’s never a good business to sue your potential market. Not if you expect to make a living from your work.  So even with my copyright proof or WGA registration in hand, I very much doubt any provocation would have made me sue.

Creators who still believe copyright protects them should consider what would happen if they had to assert their copyright in court. If it comes to a copyright challenge, will the court believe you when you present your bedraggled postmarked envelope you claim to have mailed to yourself? Or will the court be dazzled by the signed and sealed CIPO copyright registration made by the glamorous Movie Company you allege infringed your copright? After all, there are opportunists everywhere. Envelopes have been steamed open before … and who can even say that what is in the envelope is what was mailed on the postmarked day?

Will the court believe the no-name writer or the brand name Corporation backed up by the authority of a goverment agency?

court is always a gamble

Even if you go to court, there are no guarantees you’ll come out of it with what you want. Sometimes vindication carries a hefty price tag, as can be seen by Howard Knopf’s EXCESS COPYRIGHT: A Cautionary Tale of Costly Copyright Litigation Consequences: How to Win a Little and Lose a Lot

who can afford copyright remedies?

The few creators who can afford to use copyright to protect their work are those few creators rich and powerful enough to take on the handful of powerful media companies that control the mainstream market.  That lets most of us out.

And, of course, the handful of multinational media companies that control the media industry can afford copyright remedies.  That is, of course, why copyright law keeps getting longer and wider.

what do you want to spend your life doing

While lawyers may prefer to spend their days in court, me, I would rather spend my days writing.  Because I’m a writer.

Canada’s majority government passed Bill C-11 in June, 2012, transforming the co-called “Copyright Modernization Act” into “The Copyright Act,” in spite of unprecedented Canadian opposition. The tragedy is most Canadians are unaware of copyright issues and don’t yet realize the growing impact it exerts over our daily lives.
This is the fifth in my Copyright Series:

Legal Today, Not Tomorrow? ~ Bill C-11

Canadian DMCA logo

Bill C-11, Canada’s so-called “Copyright Modernization Act” has passed second reading in the House of Commons and is now before the parliamentary committee.

Since I am preparing my debut novel for eBook release, I’m trying not to pay attention, yet I find myself reading Russell McOrmond’s Bill C-11 Legisative Committee coverage.  Russell is both Live tweeting and blogging about each meeting day.   This legislation is simply too important to ignore, not just for me, as a self publishing writer, but for Canada, and the heritage and culture that is so much a part of who we are.

I can’t actually watch the proceedings myself, even though they are being broadcast online by CPAC.  Beginning with cable TV coverage, CPAC has provided Canadians with a ringside seat to Canadian parliamentary proceedure since 1992.   The problem is that this video is provided onsite in Windows Media Player format.

Problem: In order to watch video in the proprietary Windows Media Player, you need to have Windows, and I don’t.

It seems I can’t watch the livestream of the actual parliamentary committee meetings because I have chosen to use free software. I don’t use Windows anymore, nor do I use any of the various Apple computers. My operating system on *this* computer is Ubuntu, and the one on my desktop computer is Trisquel.

But of course, that’s the point.  Proprietary digital devices and content try to force the user to use the software or device specified by the manufacturer. Once you buy into any proprietary system, it is difficult to switch to another.  In this case it’s Microsoft, although it could as easily be Apple, or Sony, or any one of a plethora of rich and powerful companies that make proprietary software and hardware.

And why not? Microsoft built the Windows Media Player, and they want people to use it in their operating system.

In the past, circumventing proprietary formats might have resulted in a voided warranty. But it seems to me that Bill C-11 will make it illegal.

I expect CPAC paid rather a lot to be able to license the Windows media player.  But since Windows is still the dominant OS, it seems like a reasonable choice to reach the most people.  And CPAC wants all Canadians to have access to the video they create. That’s what they do.

And CPAC understands, because it attempts to circumvent the problem by  advising  us to copy the link below the video into our own video player if we are having problems.

I tried that, but it didn’t work on either the Ubuntu Movie Player or Banshee Media Player.   Even so, I wasn’t positive it was a proprietary issue the problem was until a friend tried to resolve it.

Apparently Flip4Mac WMV program converted the proprietary Windows video format to a proprietary Mac video format.

The other solution that CPAC offers is to use a program called VLC. Ironically I used that free software video player back when I still used Windows, but haven’t managed to get it to work in either of my gnu/linux machines.

The long and the short of it is that, because I am not able to run the proprietary Windows Media Player, I am effectively locked out of the digital government video CPAC routinely shares with Canadians.

An Illustration of Bill C-11

In a strange way this demonstrates why legal protection of TPMs — regardless of legality — is the central point of Bill C-11 that has Canadians concerned. As written, Bill C-11 would criminalize Canadians who circumvent TPMs (technical protection measures) even if we are legally entitled to access the content that is locked by these “digital locks”.

Although I’m neither a technical person or a lawyer, I think Bill C-11 would make software like the VLC player illegal in Canada because it circumvents proprietary TPMs.

And Bill C-11 will make both tools to circumvent and the act of circumvention of TPMs illegal.

It wouldn’t matter that CPAC wants to share their content with me, Microsoft would have to grant permission to convert proprietary formats into free formats, or else it would be illegal. Microsoft’s current policies indicate any such permission would be unlikely, but even if it did, the tools to circumvent the proprietary TPMs – like VLC – would be illegal, so I wouldn’t be able to do it anyway.

Lawyers like Michael Geist and Howard Knopf and tech folks like Russell McOrmond, Wayne Borean, Bob Jonkman and Cory Doctorow have said Bill C-11 would not be such a problem if TPM circumvention was only illegal if tied to copyright infringement.

the shape of things to come

But if they pass Bill C-11 as written, it will become illegal for Canadians to circumvent TPMs so we can watch our government in action. Or to back up our software, Or format shift so we can watch DVDs on MP3 players.

Depending on what TPMs manufacturers employ, it may become illegal to read public domain eBooks on our e-readers, or play DVDs that aren’t region encoded.  Which would mean that independent film makers wouldn’t be able to put their original movies on DVDs.  Independent musicians might be prevented from distributing their original work digitally.  The range of consequences are appalling.

How long until it becomes illegal to load free software on our computers?

If Bill C-11 passes, not long at all.

[Edited for readability (replacing a bit of awkward phrasing) but content remains the same.]

Image credits
Screencap cc-by 1111aether

Against DRM cc-by Nina Paley

Bill C-11 ~ this week’s Links #copyright

Canadian DMCA logoCopyright law is in the air in Canada these days, as our government contemplates passing Bill C-11 (the draft law formerly known as Bill C-32)

If you’re wondering why there is such a fuss about copyright, and why it should matter to ordinary Canadians, this is a great place to start on the issue. The highlight of this week’s C-11 coverage was, hands down, Jesse Brown’s interview with Michael Geist.

The draft C-11 Legislation has been “read” in the House Of Commons, and has now been sent to a Legislative Committee of MPs who will now attempt to clear up any problems. Canadians can now email our concerns to the appropriate MPs.

One citizen shared the reply he received from his MP boing boing

Russell McOrmond posted an interesting article contrasting the Conservative policy on gun registration with their push for digital locks

I’ve added two new blogs to my blogroll on the basis of their recent posts regarding C11.

The Copyright Modernization Act (C-11), Digital Locks and turning ISPs into Gatekeepers One Step at a Time

Canada’s copyright reform bill: Desperately seeking economists (and evidence)

Michael Geist is writing “The Daily Digital Lock Dissenter” series in which he shares the stated objections of many varied opponents of the digital lock provisions of Bill C-11:

More Information

If you are looking for more information about this copyright law, you can use the search bar in my sidebar, search the Internet. The draft legislation currently known as Bill C-11 is a word for word reincarnation of what was called Bill C-32 in the last session of parliament, so searching for Bill C-32 will give you a lot of background information and analysis.

The authorities I look to for C-11 information include:

Reduce the Access Copyright Student Tariff

Howard Knopf and Michael Geist both warn that this tariff will circumvent Canadian copyright law.
small children in "graduate" caps

As a parent I don’t think it’s a good idea, for any of our kids. You know, I’ve heard rumours that in many civilized countries post secondary education is fully funded by the state.

But what is worse is that it is totally unreasonable. What Access Copyright is demanding copyright payments for is ludicrous. For Instance:

Incredibly, the tariff defines a “copy” to include “posting a link or hyperlink to Digital Copy”. So, that would presumably include any website with copyrighted material. For example, take this blog – please! AC apparently expects to be paid whenever a professor posts a link on his or her website to my blog, or Michael Geist’s blog or the Globe and Mail or eBay. That is simply absurd.”

—Howard Knopf,
Access Copyrights Excessive $45 per University student proposed tariff

The tariff purports to licence linking to materials, despite the fact that no licence is or should be needed for such activities. It charges for displays which are not copies, lacks an exclusion for fair dealing (as is found in the current tariff), provides additional protection for digital locks, and features extensive, onerous reporting requirements.”

—Michael Geist,
Access Copyright’s 1300% Tariff Increase – Deadline to Object is August 11, 2010

I don’t have time to be elegant, but here is my objection:

Acting Secretary General
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9
613-952-8624 (telephone)
613-952-8630 (fax) (email)

Dear Mr. McDougall:

I only found out about this today, so I’ll be brief.

I sincerely hope that you decline this Access Copyright tariff increase. I think the amount is excessive and extortionate, instead I would appreciate it if you would look into reducing the amount of the tariff already paid to Access Copyright.

I am a writer, who is just getting up to speed on a lot of copyright issues because I haven’t made any income as a writer in fifteen years because I was fortunate enough to be able to take a long family raising hiatus. It is in the capacity of a parent I am writing primarily.

As a writer, I am not a member of Access Copyright, but I doubt I would want to be. I have not looked into it closely but things I’ve read about Access Copyright have made me very very uncomfortable.

As a parent, I have volunteered and/or served on the P.T.A. of the schools my child has attended. I’ve seen elementary library staff slashed to the point that I don’t think any elementary school in Ontario has a teacher-librarian available to students. Volunteers like me and a few lower paid staffers have been left running school libraries. In Ontario this unfortunate process coincided with standardized testing which invariable produces the result that we need better literacy among our children. I am confident that you will understand the dreadful irony in this.

Education lays the foundation for our future. It isn’t like Canadian post secondary students need this. This will be bad for students, economically adding the already high cost of post secondary education in Canada.

I realize that many policy makers don’t think a tiny sum like another forty five dollars will make a difference. But I have to tell you that is wrong. We are already losing plenty of bright worthy students who chose to go from high school directly into the workforce precisely because post secondary education is already too expensive. And every potential Nobel Laureate who ends up driving a cab because they didn’t want to spend the rest of their lives paying off student loans is a blow to Canada. To our future as a nation.

I believe that Canadian Copyright law requires changes, but not the sort of changes that Access Copyright would like to see. But time is short, so I don’t have time to get into that here. As I understand it our existing copyright is plenty strong, even before any changes.

As a writer, and the parent of a potential writer, I find the idea of allowing Access Copyright to license rights it doesn’t have in respect of repertoire it doesn’t have to be seriously detrimental to the future of this great nation.

This is not a good idea. Again, please consider reducing the Access Copyright Tariff.


Laurel L. Russwurm

p.s. I will also be publishing this formal objection in my blog, Laurel L. Russwurm

Canadian Copyright is a Canadian Affair

Copyright symbol with maple leafIt seems that the pressure by the American copyright lobby to dictate Canadian Copyright law is again mounting.   Of course I’ve been trying to work on my novel and so didn’t realize this was happening.

My first inkling was a Michael Geist tweet:

michaelgeist EFF & PK warn against using USTR Special 301 process to sanction countries for not implementing ACTA

Nutshell: The United States Trade Representative (USTR) creates a “watch list” of countries who fail to provide “adequate and effective” protection of intellectual property rights or denial of “fair and equitable market access to U.S. persons who rely on intellectual property protection.”

The idea is that if you don’t play nice with American IP, all the other countries hear about it.

Apparently the very powerful American Copyright Lobby has a history of applying pressure to the USTR to include countries based on allegations rather than any proof, in an attempt to coerce countries like Canada to make or laws beneficial to these American corporations.

Public Knowledge and the Electronic Frontier Foundation submitted a joint comment to the USTR Consultation outlining many instances of the misapplication of these sanctions.

The American Trade Act defines “adequate and effective protection” as the refusal of the country to provide means under its laws for foreign nationals to exercise and enforce their IP rights.

It considers a country to have denied market access if its laws or regulations violate provisions of international agreements to which both the U.S. and that foreign country are parties or if the law or regulation constitutes a discriminatory non-tariff barrier.   Thus, a country should be considered to provide adequate and effective IP protection and fair and equitable market access for these purposes if it complies with its existing international obligations and provides foreign rights-holders with a means under its domestic law to enforce their rights or seek access to its markets.

Failure to sign international agreements does not per se mean the country has failed to provide adequate and effective protection for U.S. rights-holders’ intellectual property.   This is also consistent with the principle of national sovereignty, a foundational principle of the modern world order, which recognizes a country’s freedom to choose international instruments to which it will be bound.”

in the Matter of 2010 Special 301 Review:
Identification of Countries Under Section 182 of The Trade Act of 1974

Reading through the PK and EFF comments all I can say is that I for one am very glad that they are out there working to protect the internet for all.

Michael Geist has often said that Canada already has very tough Intellectual Property law, and IP lawyer Howard Knopf tells us exactly why in his Excess Copyright blog post The “Annual 310 Show” – USTR Calls for Comment – 21 Reasons why Canadian Copyright Law is Already Stronger than U.S.A.’s

I made use of PK’s handy online form to submit my comments as a private Canadian citizen, and although it was a tad past the deadline, it was accepted. I thought it particularly important since our own Canadian Government elected not to make a submission.

I realize that our legislature is currently prorogued, but that isn’t slowing down Canadian participation in the ultra-secret A.C.T.A. trade negotiation. In fact, if Canada is singled out here by the USTR it would simply provide more leverage to coerce Canada into signing the A.C.T.A. agreement, no matter how dreadful.

RE: 2010 Special 301 Review
Docket Number USTR-2010-0003

Jennifer Choe Groves
Senior Director for Intellectual Property and
Innovation and Chair of the Special 301 Committee
Office of the United States Trade Representative
600 17th Street NW
Washington, DC 20508
Filed electronically via

Dear Ms. Groves:

The United States Trade Representative (USTR) must not allow rights holders to use this proceeding to force sovereign nations to impose overzealous restrictions on their citizens and interfere with our civil liberties or diminish our global standing.

Whatever happened to the American spirit of liberty, and vaunted dedication to life, liberty and the pursuit of happiness?

The USTR must recognize the importance of balanced intellectual property law to innovation and free expression. The provision for innovation and free expression is necessary for culture to exist.

The USTR must demand rights holders support claims of infringement and loss with verifiable data following standards of proof and the rule of law.

Unsubstantiated accusations can be made in error, or just as easily made spuriously by entities who are not even the rights holders as a means of suppressing free speech.

The United States will lose global credibility by continuing ton this slippery slope.

The United States does not have the right to dictate Canada’s specific structure of domestic laws. Your rights holders’ demands for increasing criminal penalties, prison terms, fines, and liability have no place here as we have the sovereign right to determine our own limitations and exceptions to copyright.

Canadian Copyright law is robust, in many ways stronger than your own as explained in esteemed Canadian Intellectual Property lawyer Howard Knopf’s blog:

As a Canadian Citizen and a writer I hope the USTR follows the law not the lobbyists.

Laurel L. Russwurm

canadian flag
a sovereign nation
American Flag
follow the laws not the lobbyists