An Ottawa lobbyist has paid $16,281 by Court order for copying Blacklock’s news content in breach of the Copyright Act. Dan Paszkowski, president and CEO of the Canadian Vintners Association, had declined a pre-litigation settlement of $314. “I don’t have a lot of time to spend in court,” he said at trial.
Evidence showed Paszkowski copied a December 13, 2013 article concerning his testimony at the Commons agriculture committee. The article, headlined “Vintners Appeal For Help Under Euro Trade Pact”, reported: “Winemakers are appealing for more subsidies to withstand the impact of a free trade pact with Europe.”
A Vintners employee criticized the article as “sensational” journalism: “That says that we were appealing for more subsidies, which I would say is totally false,” testified Beth McMahon, vice-president of government and public affairs. “We don’t see ourselves as having subsidies,” McMahon told Court; “I think anybody who works in government relations in this town understands that, first of all, the word ‘subsidies’ is not well-received”.
The article correctly noted vintners sought an increase in their $220,000 share of a Growing Forward 2 farm promotions program cost-shared with provinces. The Vintners Association also received $479,356 in funding from the Department of Agriculture in the last reporting year, according to the Lobbyist Registry.
Blacklock’s sued after Paszkowski refused to explain how he obtained a copy of the paywalled article, and declined the $314 payment — the cost of two individual subscriptions. “The Canadian Vintners Association is not a subscriber to Blacklock’s and is therefore not bound by your terms and conditions,” he wrote in a January 17, 2014 letter to the company.
Paszkowski by Court order was compelled to name his source of the copied article, a secretary at another lobbyist’s office. In testimony, he said he knew the article could not be copied without payment or permission:
- PASZKOWSKI: “I did know it was from a subscription. My only purpose was to review it.”
- JUDGE: “You did not know – or you did know?”
- PASZKOWSKI: “I did know. I did know that they were a subscriber. I did know that it was subscription based.”
Deputy Judge Lyon Gilbert of Ontario Divisional Court’s small claims branch ordered the Vintners Association to pay the five-figure judgment including the value of a commercial licensing agreement, legal costs and $2,000 in punitive damages. “They continued to stand steadfast to the notion that they had done nothing wrong while knowing they had taken steps to bypass the paywall,” Gilbert wrote.
“You are prohibited from circumventing a technological protection which uses an effective technology to control access to a work,” wrote Gilbert, citing section 41.1 of the Copyright Act. “What the defendants did is just that. They knew there was limited access to the full article; they knew that access was subscription-based only, and that subscriptions cost money; they knew that there was a technological barrier to that access; they knew that unless they paid they could not get it. They knew and chose another way around it.”
The winemakers had claimed exemption under a “fair dealing” defence that permits copying under strict circumstances “for the purpose of either research or private study”. The Vintners Association represents 59 companies and trade groups that account for 90 percent of the nation’s wine producers.
“It must be remembered that the corporate defendant had in mind its own economic and commercial value in accessing the material, and was seeking to maintain its credibility as a lobbyist with government, and to protect its members’ financial interests,” Judge Gilbert wrote.
Paszkowski prior to the lawsuit expressed enthusiasm for Blacklock’s content: “I am aware that you have a very broad subscription base,” he wrote the company December 17, 2013: “We have discussed Blacklock’s publication with colleagues and have identified several who believe that your publication offers great information and value.”