Another foolish court decision

This decision cannot possibly stand as is. Photo Credit: iStock. 

A court case that has been hanging around for about eight years finally saw a decision by Federal Court Judge Yvan Roy earlier this week. The case had been brought by Blacklock’s Reporter, an independent news service that refuses to take government money and has been consistently and effectively critical of the federal government since it was founded in October 2012. The case was based upon the fact that a federal government bureaucrat had years ago been caught sharing passwords for a Blacklock’s subscription with a number of colleagues. 

Roy decided that Canadians can share media passwords without payment or permission, which amounts to the theft of intellectual property. The judge, however, stated that reading the copyrighted content of Blacklock’s by people who did not have a paid subscription did not violate Blacklock’s copyright. He also stated that the additional government employees were merely reviewing Blacklock’s content to protect the public from any errors or omissions that might be found. Yet zero errors or omissions were actually found or at least not cited. Lawyers for the federal government had claimed that this password sharing was merely to ensure Blacklock’s stories were factual. Yeah, right. 

Blacklock’s has become a very effective news outlet that does considerable research into federal government skullduggery and is often the first news organization to break controversial stories. It is used by many other news outlets – including many subsidized by the Trudeau government with our tax dollars – to further report on important breaking news. There can be no doubt Blacklock’s has become an important thorn in the Trudeau government’s side. The excuse that federal employees not paying for the service were reviewing content merely to “fact-check” is ludicrous. 

The offending federal government department, Parks Canada, purchased one Blacklock’s subscription (the current cost is $314.00 annually) to see only one story – a story that revealed Parks Canada paid the CBC more than $94,000 for positive coverage of Parks Canada’s work. The Department of the Environment and Parks Canada, an agency within the department, budget for almost $300,000 annually for media monitoring. The notion they could not have ante’d up a few hundred bucks for more Blacklock’s subscriptions and respected their copyright is ridiculous, especially considering how this government typically distributes our tax dollars with a firehose. 

Disputes over intellectual property and how creators receive value for their work is an age-old debate. It is especially important today as so many people are making their living from subscriptions to password-protected content delivered electronically. This will only grow in future. Back in the day, some people used to steal cable TV from their neighbours by physically tapping into their cable connections. As for printed material, there are significant fines levied to protect the creator’s copyright if a book or article is reproduced for improper reasons. 

Today, password protection is intended to accomplish the same result for online content. As anyone who has a Netflix or other video streaming service will know, these companies have recently tightened up their rules on passwords and how many devices can access their services under the same password as they were undoubtedly losing revenue because of password sharing.  Presumably, this court decision will have implications for those companies as well for their operations in Canada. 

This decision cannot possibly stand as is. Already, various experts are weighing in on what it could mean for the large and growing number of individuals and businesses who make their living via online subscription who deserve to be paid for their work. As such, it could become an important test case to move copyright legislation forward in the digital age. What is essential for this decision is an appeal to the Supreme Court of Canada to make a more reasonable ruling on such an important issue. Sadly, there’s no guarantee of that either given the composition and unpredictability of the highest Court in Canada today. Whatever the case, this is a decision many will be watching carefully. 

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