Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Posts Tagged ‘lawsuit

Copyright, Fair Dealing and Paywalls

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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.