Blacklock’s legal challenge of theft of its work by federal managers is a test of passwords used by all publishers in Canada, says a secret memo to Heritage Minister Steven Guilbeault. A pending appeal in Blacklock’s Reporter v. Canada was being monitored closely, said the memo disclosed yesterday through Access To Information.
“This decision may create uncertainty among rights holders and users,” said the April 3 departmental memo Copyright Issues Raised In Blacklock’s Reporter v. Canada. “Officials are monitoring,” it added.
Blacklock’s is challenging a 2024 Federal Court ruling that government offices could lawfully share passwords to its paywalled stories without payment or permission. The decision came in the case of a Parks Canada manager Genevieve Patenaude who bought a $148 Blacklock’s password, the rate charged at the time, and despite repeated warnings shared it with any co-worker who asked, at least nine people, “if you ever need to access any Blacklock’s article.”
The Federal Court ruled while Patenaude made a “mistake,” Parks Canada had an “immediate interest in the articles for business related reasons” without paying the same fees it gave other licensees. The agency and the Department of Environment at the time budgeted more than $282,000 a year to read other media. Blacklock’s argued the password sharing was simple theft that violated the Copyright Act and undermined the commercial viability of unsubsidized media. A hearing on the appeal is scheduled for October 6.
The outcome has obvious implications for paywalled publishers from newspapers to video game distributors, said the Department of Canadian Heritage memo. “Rights holders have repeatedly expressed concerns over what they see as the expanding doctrine of fair dealing and erosion of their exclusive rights,” it said.
“The use of passwords to limit access to copyright protected content is a common business practice among online platforms including news sites, streaming services and video game digital distribution services,” said the memo. “Rights holders may be concerned that passwords and paywalls are no longer seen as effective technological protection measures.”
“Discourse that emerged after the decision has raised questions from copyright stakeholders about the strength of technological protection measures under Canada’s Copyright Act,” said the memo. “The decision is currently being appealed by Blacklock’s Reporter. Officials are monitoring the appeal process.”
“Abuse Of State Power”
Howard Law, former Unifor director of media, in a May 1 commentary Miles To Go: The Media Policy Work Of The 45th Parliament called government password-sharing “ill-considered” and counterintuitive. “It simply does not match up against the common sense reality of running a paywalled news business,” he wrote.
“The fact that Blacklock’s is editorially a thorn in the side of the government is the bad energy behind all of this,” wrote Law. “It’s a vindictive abuse of state power.”
Hugh Stephens, vice chair of the Canadian Committee on Pacific Economic Cooperation, last August 20 called the ruling a “license for piracy” that undermined all publishers. “Newspapers like the Globe & Mail and National Post, specialized journals like Blacklock’s, recreational publications like The Walrus or Maclean’s or various other online publications should be able to stand on their own feet and earn revenue from the valuable content they provide,” he wrote
“If that content is not worth paying for in the eyes of consumers, why produce it?” asked Stephens. “But a business model that is based primarily on getting paid by consumers for the content they consume is not viable if media products are free for the taking.”
Peter Menzies, former Calgary Herald publisher, last September 6 in a Globe & Mail commentary described government password-sharing as bizarre. “It should be obvious it is bizarre for Mr. Trudeau’s government to be going to the barricades to defend what it interprets as copyright user rights in a manner that could undermine an industry it has attempted to sustain,” he wrote.
Barry Sookman, senior counsel with McCarthy Tétrault LLP of Toronto, in a commentary last August 7 said the lower court ruling would harm all publishers. “The Blacklock’s Reporter court decision could leave online news services scratching their corporate heads asking whether after this decision they have any legal protection against subscribers, and especially Government of Canada subscribers, disavowing online subscription terms,” said his Critical Commentary Of The Blacklock’s Reporter-Parks Canada Decision.
By Staff 
