Canadians may share media passwords without payment or permission, a federal judge has ruled. The decision by Federal Court Justice Yvan Roy came in the case of a Government of Canada manager who bought a single Blacklock’s subscription then shared the password with nine people.
“This constitutes the simple act of reading by officials with an immediate interest in the articles for business related reasons,” wrote Justice Roy. “There is no evidence this was in the nature of a frolic in territory protected by copyright.”
“There is a significant public interest in reading articles with a view to protecting the public and the press against errors and omissions,” wrote the Court. Federal lawyers in the case justified password sharing under the guise of fact-checking. No errors or omissions in Blacklock’s stories were cited.
Blacklock’s caught Parks Canada managers circulating a single password by email. “The Court accepts that Parks Canada was subject to Blacklock’s terms,” said Barry Sookman, senior counsel with McCarthy Tetrault LLP of Toronto and adjunct professor of intellectual property at Osgoode Hall Law School. “Those terms clearly limited use by Parks Canada.”
The ruling plainly impacted every media company using passwords, said Sookman. “Canadian publishers rely on the ability to enforce contractual terms and their copyright to sustain their business models, especially those premised on subscriptions,” he said. “The Blacklock’s case leaves these protections in doubt.”
Genevieve Patenaude, a manager at Parks Canada, purchased a single password at the request of the Environment Minister’s office to see one story, records showed. The story stated Blacklock’s obtained documents proving Parks Canada secretly paid the CBC more than $94,000 for positive coverage of the agency’s work. Neither Parks Canada nor the CBC disclosed the cash-for-coverage payment.
Parks Canada and the Department of Environment at the time budgeted more than $282,710 a year for media monitoring including $50,145 to Press News Inc. and $23,632 to Cedrom-SNI Inc. Manager Patenaude had “experience with the purchase of subscriptions for Parks Canada” and should have known Blacklock’s terms and conditions were “plainly visible,” said the Court.
“Had Ms. Patenaude been curious enough she would have clicked on the button ‘Terms And Conditions’ and right upfront she would have read the paragraphs,” wrote Justice Roy. Terms stated: “You acknowledge and agree one subscription is allotted per subscriber. Distribution of articles, photographs, images, writings or other content of any kind by a single subscriber by paper, electronic file, disc, intranet or any and all methods is not permissible. For bulk subscriptions see ‘Contact.’”
Evidence showed Patenaude also immediately received multiple email notices stating: “For institutional subscribers who would like to share or distribute content in-house please contact publisher Holly Doan for custom bulk rates,” with an email and phone number provided.
Justice Roy ruled Blacklock’s terms and conditions though “plainly visible” were irrelevant and the email notices too bewildering for Parks Canada management to comprehend. “What is an ‘institutional subscriber’ other than a subscriber who happens to be an institution of some sort? he wrote. “What is a ‘bulk subscription’? What constitutes ‘distribution’ or ‘share’?”
Records showed Manager Patenaude shared the password with at least nine others and offered it to anyone who asked “if you ever need to access any Blacklock’s article.” Each password granted access to Blacklock’s entire database of thousands of copyright works.
Access To Information records showed where passwords were not shared, Parks Canada staff cut and paste password-protected content for sharing by email. The agency had 2,160 employees at the time.
Blacklock’s argued in Federal Court that password sharing violated 2012 amendments to the Copyright Act forbidding the breach of any “technological protection measure” to access works. Parliament wrote no person shall “avoid, bypass, remove, deactivate or impair the technological measure” without a copyright owner’s permission. The Act defined a technological protection measure as “any effective technology, device or component that in the ordinary course of its operation controls access to a work.”
Justice Roy wrote “there is no evidence of what a ‘password’ is” and that password buyers were entitled to share them without any stated limit. “Use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act,” he wrote.
Michael Geist, Canada Research Chair at the University of Ottawa, called the ruling a “huge win” for people who do not want to pay for content. “The decision could have enormous implications,” Geist wrote in a blog post, adding that media creators “cannot merely rely on passwords protecting their works.”
Blacklock’s shareholders said in a statement: “Since 2016 we have tramped in and out of Federal Court hearings to uphold Canadian publishers’ centuries-old right to sell subscriptions and prosecute shoplifters. We were naive. The biggest corporation in the land, the Government of Canada, gained new powers to steal from the littlest publisher.”
“Federal media meddling is now complete,” said shareholders. “Paid media get the carrots – $29,750 employee rebates, 15 percent subscription tax credits, six-figure ‘media monitoring’ payments and $94,000 cash-for-coverage – and independent publishers get the stick. Carefully scrutinize the self-interest of anyone who claims otherwise.”
By Staff 
(photo: Federal Court)
