Breach of copyright over paywall raises tech neutrality questions


A recent decision that ruled a reader had violated new provisions of the Copyright Act when he bypassed a publication’s paywall to access an article raises questions about technological neutrality, as similar facts in the analog world would yield a different result, Toronto business lawyer Bill Northcote tells Law Times.

As the article reports, 13595804 Ontario Limited (Blacklock’s Reporter) v. Canadian Vintners Association (CVA) centred around a subscription-only news publication focused on the workings of Parliament, which quoted the president and CEO of the CVA. Although the CEO was concerned about “inaccuracies” in the preview, he was unable to see the full story behind the paywall, and asked a subscriber friend to send him a copy.

When he contacted the publisher to discuss the story and disclosed how he managed to view the article, he soon received a letter alleging a breach of copyright, as well as an invoice for two subscriptions. After refusing to pay, Blacklock’s took the case to Ottawa Small Claims Court, winning $11,500 plus $2,000 in punitive damages, says the article.

Deputy Judge Lyon Gilbert ruled that the fair dealing exception to copyright infringement was not available to the winemakers’ group “because it had violated the new technological protection measure provisions of the Copyright Act when bypassing the online publication’s subscriber paywall to access a news article,” Law Times reports.

As Northcote, chair of Shibley Righton LLP’s business law practice group, says: “If I buy a newspaper, and you ask to see an article about you in it, there is no copyright infringement there in the traditional analysis.”

Northcote also tells Law Times that he was troubled by the suggestion in the judgment that something must come of research or private study in order for that fair dealing purpose to be considered genuine.

“There are all kinds of good tactical reasons why you may decide to do nothing with your research, rather than getting into an argument with a publisher,” he says.

Northcote says the CEO’s call to Blacklock’s publisher to discuss the story could be regarded as the sort of action the judge found lacking, adding that the punitive damages award “seems excessive.”

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