Federal Court Finds Fair Dealing in Blacklock’s Reporter v AG Canada

- 2016-11-10 -

The Federal Court of Canada has found that obtaining, reading and distributing paywalled articles for the purposes of assessing and responding to the contents of those articles constituted fair dealing under the Copyright Act.

In a tightly drafted judgement, Justice Barnes found that the Finance Department employees exercised their fair dealing rights for research purposes in receiving a pair of articles from a Blacklock's subscriber, and reading and sharing those articles internally with other Department employees.  Justice Barnes rejected Blacklock's arguments that its terms of use barred such dealing, noting that it was not Blacklock's practice to explicitly bring such terms to the attention of users, and, in any event, those terms contained an ambiguity permitting reproduction and distribution for non-commercial, personal or educational purposes.

Given the outcome of its fair dealing analysis, Justice Barnes saw no need to address the Government's claim that Blacklock's practices constituted copyright misuse, although he did note that there are "certainly some troubling aspects to Blacklock's business practices".  The Court awarded costs to the Government.

The decision represents a solid affirmation of fair dealing rights, and one that should serve to deter copyright trolls from bringing meritless claims against obvious fair dealing practices in the future.