If you are a trade association, a business or a government department in Canada and a blog service has written an article making allegations about you and the full article is only accessible behind a pay wall … it seems that you have to pay to see if your reputation has been injured … as you could face severe penalties if you ask a subscriber to share a copy of the article with you. So says the Ontario Superior Court of Justice, Ottawa Small Claims Court, in 1395804 Ontario Limited (Blacklock’s Reporter) v. Canadian Vintners Association, 2015 CanLII 65885 (ON SCSM).
This case engages the recently approved technical protection measures provisions introduced into the Copyright Act, 1985 RSC, c. C-42 in order that Canada could implement the WIPO Copyright Treaty. Those provisions were seen as controversial for numerous reasons. The Vintners’ case will likely add to the controversy.
In this case the plaintiff is a news organization that provides a subscription based service. The corporate defendant is an association that represents about 90% of the wine producers in Canada and advocates on public policy issues for its members.
The plaintiff published an article discussing the defendant association and circulated a “teaser” article to the defendant with enough information to let the defendant association know they were a subject of the full article reporting on the personal defendant’s testimony before the House of Commons. The plaintiff did not offer to let them see the story. Instead they offered only a subscription to their service.
The corporate defendant was provided a copy of the full article from an association member who was a subscriber and who was not pursued by the plaintiff. The defendant called the plaintiff to discuss the article. The defendant claimed that the sole purpose they wanted to see the article was to assess inaccuracies in it.
When the plaintiff realized that the defendant had obtained a copy of the article they sent a bill for two individual subscriptions to the defendants (as a second staff person was copied on the email). When the defendant asserted they did not reproduce, duplicate or distribute the article, the plaintiff sued for copyright infringement.
The small claims court took a literal approach in this case. The court found that access to the full article was obtained without colour of right and without permission from the publisher. The court noted that the Defendants embarked upon “a course of conduct explicitly designed and coupled with the intent of obtaining an article which was not available openly, transparently and without taking steps otherwise open only to subscribers”.
The judgement does not show any analysis of the anti-circumvention prohibition nor does the judgment consider if there are any limits on the terms a copyright holder may impose (such as requiring a waiver of rights) in making copyright subject matter available via technical protection measures.
While the court noted that the defendant’s sole purpose of obtaining the copy was “determining whether statements made therein were truthful and accurate, and if necessary, taking steps to challenge, debate and correct, or alternatively for educational purposes, such steps were not taken”. Instead, the court stated that the “Defendants took steps which they knew or ought to have known were contrary to the process required by the paywall and to the terms and conditions which were extant and applicable”.
The court found that since the defendants obtained the article illegally that the fair dealing defense was not applicable. In effect the Court found that circumvention of the technical protection measure (the pay wall) by getting a copy of the article from another person, was a matter of strict liability.
The court went on to find appropriate damages for access to the single article were at the corporate institutional subscription rate for the plaintiff’s service of $11,470.00 plus HST despite that the plaintiff had offered to settle for $314. The court went further and found this was a case where punitive damages were warranted, namely where the “Defendants’ conduct amounts to being high-handed, malicious, vindictive and oppressive” and awarded $2,000 in punitive damages. So, the cost to the defendants for obtaining access to a single article written about them was $13,470.00 in compensatory and punitive damages as well as prejudgment interest.
Of course, it is important to respect paywalls and other technical protection measures. However the facts of this case appear to suggest that this is a case of a particularly severe remedy in what appear to be the circumstances.
One sees several lessons in this case should it be adopted by future Courts. Firstly, the Court gave a broad meaning to the technical protection measures provisions under the Copyright Act seeing the bypassing a paywall by obtaining a copy of the article from another source to be a circumvention. Secondly, the Court has interpreted that the “user’s rights” protections, the fair dealing rights, that are a core part of the balance of copyright law , are not available in such cases. Thirdly, the Court focused on the plaintiff’s terms and in this Court’s uncritical view the plaintiff defined terms become absolutely determinative of the permitted conduct.
More specifically to the facts of the case some lessons include that if other courts were to take the unsympathetic approach that appears to arise in this case then no effort should be made to obtain a copy of an article behind a paywall without going through the subscription process. In this case the terms and conditions of the plaintiff’s service specifically require a subscriber to waive certain rights and accept limitations on liability and other restrictions under such terms.
It appears that a new business model may be supported by this decision. A news or other organization can write about a person or entity, share some possibly limited controversial details with the subject and then refuse to share the details with the subject unless they agree to waive some of their rights against the publisher and pay for the privilege of seeing what was said about them.
In is reported that the plaintiff has been active in the Canadian courts having filed 10 law suits since the middle of 2014. It appears that at least another defendant has been prepared to mount a novel defense against what they allege is the plaintiff’s business model in a Federal Court motion , where the defendant, in that case, was successful in obtaining an order to permit it to plead copyright abuse as a defense. In that case the Case Management Judge considered the novel defense as follows:
The defence that the Defendant seeks to raise, based on abuse of copyright, is novel but as the Plaintiff itself recognizes, the door has been opened and there is no case law that traces the outer limits of that defence. The Plaintiff makes a spirited argument that the proposed defence is based on three elements: teaser, use of ATIP [Access to Information] request and speculative invoicing, none of which are unlawful or tortious. However, I think that this mischaracterizes the allegation. The allegation also includes that the teaser often includes incorrect or misleading information and is designed to interest the department in reading and distributing the articles. The novel doctrine of trolling is, also, said to sometimes include patterns of behaviour that, taken individually, are entirely lawful but which, in the way and circumstances in which they are used, become abusive. Finally, the argument of counsel for the Plaintiff based on the Bill of Rights and the propriety of the Attorney General pleading use of ATIP requests as part of an unlawful scheme certainly does not rise to my mind to the level that it makes it plain and obvious that the proposed defence cannot success. Again, I am not certain that it is fair to characterize the scheme alleged by the Defendant as being founded on the use of ATIP requests. The ATIP requests are one of the factual steps alleged but may not be an essential step; one has to give a fair and wide reading to a proposed defence. It is not my purpose to say whether the argument of the Plaintiff will eventually be well founded or not. At this point, what the Plaintiff had to do was to satisfy me that the proposed defence does not have a scintilla of a chance of success or that it is so clearly improper that it should not be permitted. I am not satisfied that this is the case.
Merely pleading the defense does not mean it will be accepted by a Court or will be made out at trial but it should allow the Court to consider the alleged business model in this context of the technical protection measures provisions.
The Vintners’ case is only one of the few times that a Court, in this case a small claims court, has considered the technical protection measures provisions. We can expect other Courts will examine this area and how the technical protection measures provisions fit into the scheme of the Copyright Act in future cases. As this area evolves and we see the results of other (more senior) Court’s deliberations the results and final analysis should be of considerable interest to both those whose businesses depend on technical protection measures as well as users.