Fair Dealing and Digital Locks: CIPPIC’s Intervention at the FCA

CIPPIC has filed its (Memorandum of Fact and Law)[https://cms.cippic.ca/uploads/A_267_24_1395804_ONTARIO_LTD_v_AG_Canada_Intervener_Memorandum_of_Fact_and_Law_3e8eead498.pdf] in the appeal of (1395804 Ontario Ltd. v. Canada (Attorney General), 2024 FC 829)[ https://canlii.ca/t/k4zfr], arguing that the Copyright Act’s anti-circumvention provisions do not override fair dealing. CIPPIC’s argument focuses on reconciling user rights with Parliament’s enactment of remedies for circumventing digital locks. This intervention follows CIPPIC’s successful participation in the hearing in the Court below, where CIPPIC’s interpretation of the digital lock provisions prevailed.

**The Decision: Fair Dealing and Anti-Circumvention Provisions ** In the decision under appeal, (1395804 Ontario Ltd. v. Canada (Attorney General), 2024 FC 829)[ https://canlii.ca/t/k4zfr], the Federal Court of Canada ruled that Canada’s anti-circumvention provisions do not override fair dealing. The plaintiff, a paywalled news service, sued Parks Canada, arguing that employees had improperly accessed and shared its articles, violating copyright and technological protection measures. The court rejected this claim, holding that using a validly obtained password is not circumvention and, regardless, copyright owners cannot use digital locks to negate fair dealing rights. The unsuccessful plaintiff appealed.

CIPPIC’s Argument on Appeal

CIPPIC has been granted leave to intervene in the appeal. It has intervened to defend the balanced interpretation of the relationship between user and digital locks in copyright law. We argued that: • Anti-circumvention provisions must align with fair dealing. Copyright owners cannot use technological protection measures to eliminate legally protected user rights. • A valid password is not circumvention. The Copyright Act targets hacking, not legitimate access. • The Act must remain technologically neutral. A user’s fair dealing rights do not disappear when content is digital rather than physical.

CIPPIC thanks (James Plotkin)[ https://gowlingwlg.com/en-ca/people/james-plotkin] and his team at Gowling WLG for their outstanding work on our intervention.

Next Steps

The Federal Court of Appeal will schedule a hearing. CIPPIC will continue defending fair dealing and ensuring technological protection measures do not become tools for erasing user rights. • (CIPPIC’s Memorandum of Fact and Law)[https://cms.cippic.ca/uploads/A_267_24_1395804_ONTARIO_LTD_v_AG_Canada_Intervener_Memorandum_of_Fact_and_Law_3e8eead498.pdf] • (Intervention Order)[https://cms.cippic.ca/uploads/A_267_24_20241220_O_E_O_OTT_20241220091845_LB_2_c79d6cd3bf.pdf] • Decision under review (1395804 Ontario Ltd. v. Canada (Attorney General), 2024 FC 829)[ https://canlii.ca/t/k4zfr] •