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Blacklock’s Reporter copyright cases could alter online subscription policies

Blacklock’s Reporter has ongoing federal court actions against the departments of Finance, Foreign Affairs and Public Works, the Bank of Canada, Canadian Food Inspection Agency, Canadian Transportation Agency, Canada Revenue Agency, the Competition Bureau and the Library of Parliament.

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A slew of copyright cases brought by a small news publisher have raised questions about legal limits on sharing articles protected by paywalls, raised eyebrows among legal experts and spurred allegations of "trolling" in the courts.

Blacklock's Reporter, a subscription-only news website run by a team of four editors that covers federal government issues, won more than $13,000 in Small Claims Court last month by arguing that the Canadian Vintners Association infringed copyright when the CVA's staff obtained an e-mailed copy of an article quoting their chief executive officer from an acquaintance of one of the group's staff who had a subscription.

But Blacklock's, whose slogan is "Minding Ottawa's business," also has nine outstanding claims against the federal government's departments and agencies, alleging copyright infringement over articles circulated among staff. And government lawyers are fighting back, arguing that Blacklock's "is a copyright troll" that uses litigation as a "strategy for generating revenue."

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The vintners decision, as a small-claims matter, won't influence future cases. But a federal ruling on the same issues could set an important precedent about policing the sharing of news articles protected by paywalls. At issue is the very right to read published material paid for by subscriptions, just as social media and other technologies have made sharing ubiquitous.

"The conclusions [in the CVA case] are counterintuitive and could have serious repercussions if they're upheld on appeal," said Howard Knopf, counsel at Macera & Jarzyna LLP who specializes in copyright law.

The dispute began in December, 2013, after Blacklock's published a story quoting testimony to a House of Commons committee by Dan Paszkowski, chief executive officer of the CVA, which represents wine producers. Blacklock's sent the CVA a "teaser" e-mail with the headline and a few lines of text "both as a courtesy and an advisory given he had been quoted in the story," according to court documents.

Mr. Paszkowski worried the story had errors, so one of the the CVA workers asked an acquaintance who had a Blacklock's subscription to send them the full article by e-mail. Mr. Paszkowski and a colleague both received e-mailed copies and the board of directors was "made aware" of the story at its next meeting.

In court, Mr. Paszkowski likened what he did to reading a magazine in a doctor's office.

When Mr. Paszkowski contacted Blacklock's publisher, Holly Doan, to discuss the story, she asked how he got it. The next day, Blacklock's sent the CVA an invoice for two subscriptions costing $157 each, the annual single-subscriber rate, and later went to court after the CVA refused to pay.

"We don't have any choice. There are no police to call when somebody takes our intellectual property," Tom Korski, managing editor at Blacklock's Reporter, said in an interview.

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Deputy Judge Lyon Gilbert, who runs an Ottawa-based mediation and arbitration firm, dismissed the CVA's defence that it engaged in "fair dealing" for the purpose of research – a provision that also protects some uses of copyrighted works, including education and news reporting. He awarded the publisher $11,470 in damages – the price of an institutional subscription for the CVA and its 44 members – plus interest and another $2,000 in punitive damages.

On his lawyer's advice, Mr. Paszkowski declined to comment, and it is not clear whether the CVA will appeal the ruling.

But Prof. Teresa Scassa, the Canada Research Chair in Information Law at the University of Ottawa, said the award seems "extreme" given that only a single article was shared.

Meanwhile, Blacklock's has ongoing federal court actions against the departments of Finance, Foreign Affairs and Public Works, the Bank of Canada, Canadian Food Inspection Agency, Canadian Transportation Agency, Canada Revenue Agency, the Competition Bureau and the Library of Parliament. The government is contesting Blacklock's claims, in part by arguing the publisher is misusing copyright law.

"The Plaintiff sends 'teaser' e-mails to recipients at those departments," lawyers argue in federal court documents. "The Plaintiff (Blacklock's) then requests information under the Access to Information Act about the persons who received its articles and demands money from the government department when its personnel forward the Plaintiff's articles, as anticipated by the Plaintiff."

Blacklock's is seeking between $15,000 and $28,000 in damages from its actions, plus up to $20,000 in punitive damages in some instances, based on the costs of institutional subscriptions tailored to the size of each department or agency. Federal lawyers say such figures are "artificially high."

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None of the allegations have been proven. But once a federal court issues a decision, "that will certainly be an interesting precedent," Ms. Scassa said. It could shape what kinds of sharing breaches copyright, when fair dealing is a valid defence, what counts as avoiding a digital lock and whether doing so nullifies fair dealing for future cases.

Where the CVA is concerned, neither Ms. Scassa nor Mr. Knopf are convinced Blacklock's copyright was infringed at all.

"This is fairly new territory," Prof. Scassa said. "I think that the judge arrived very quickly at a lot of the conclusions."

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