Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Federal Court Rules that Digital Locks Do Not Restrain Fair Dealing using a Validly Obtained Password
[125] CIPPIC’s submissions were more fulsome. Fundamentally, it argues that the TPM provisions do not apply to restrain fair dealing; using a validly obtained password to access content is not circumvention. I agree.
The Federal Court of Canada has ruled that the anti-circumvention provisions of the Copyright Act do not apply to restrain fair dealing; using a validly obtained password to access content for the purposes of fair dealing is permissible.
The matter involves a number of lawsuits between an online news publisher and the Federal Government. The publisher posts articles on its paywalled news site, some of which are about government agencies. Employees of those agencies are alleged to have shared passwords to access the site to monitor media coverage and internally share articles to address misleading or erroneous information. The publisher alleges such practices infringe copyright and circumvent digital locks contrary to the Copyright Act.
The Attorney General of Canada (AGC) sought a summary judgment to dismiss parts of the claim regarding circumvention and to confirm that the use of articles obtained through a subscription constitutes fair dealing under the Copyright Act.
CIPPIC intervened, arguing that the case implicated the balance between the rights of copyright owners and the fair dealing rights of users under the Copyright Act. CIPPIC argued that fair dealing could stand as a defense to anti-circumvention provisions.
The Court agreed. The court held:
- that Parks Canada's use of the password to access articles constituted fair dealing under section 29 of the Copyright Act;
- the password use in this case did not bypass, deactivate, or impair any technological measures since it was used as intended to access articles;
- the sharing of a validly obtained password for the purposes of fair dealing does not constitute circumvention of technological protection measures, provided the use aligns with fair dealing purposes; and
- fair dealing can coexist with digital locks, meaning that copyright owners cannot use technological protection measures to completely negate fair dealing rights.
This decision is significant for future cases as it underscores the necessity of maintaining a balance between copyright protection and users' rights. It clarifies that the use of a password, when obtained legally and used for legitimate purposes such as research, does not infringe on anti-circumvention laws. However, the ruling is limited to the specific context of this case, where the password was used as intended and for fair dealing purposes. Future decisions will need to consider the specific facts and context of each case, particularly where the use of technological protection measures and fair dealing intersect. The decision reaffirms the principle that fair dealing is a fundamental right under the Copyright Act, even in the digital age.
