Fair Dealing Found for Lucy and Ethel (and the Rest of the Department of Finance)

The recent copyright decision of 1395804 Ontario Ltd. v Canada (AG), 2016 FC 1255 elaborated on Supreme Court jurisprudence on the principle of fair dealing.

The Plaintiff, an online paywalled news site (Blacklock’s), alleged that the Department of Finance (“Department”) had violated copyright by obtaining, reading and distributing its articles without authorization. The Defendant argued that their conduct was fair dealing under section 29 of the Copyright Act.

The dispute arose over a Blacklock’s article on sugar tariffs. Blacklock’s publicized the article on Twitter® with the heading: “Lucy and Ethel at Finance Canada impose a $30M sugar tax by mistake at blacklocks.ca.”  Upon viewing the message, a Department staffer purchased a single user subscription to Blacklock’s site to access the story, which she then shared with her colleagues. Blacklock’s subsequently published a second article. The Department staffer repeated the same actions.

The Federal Court (FC) applied a two-part fair dealing test, asking whether the dealing was for an enumerated purpose under the Copyright Act; and, whether the dealing was “fair” under the six-part CCH test (CCH Canadian v Law Society of Upper Canada, 2004 SCC 13). 

The FC found that the circulation of the articles was done for a proper research purpose and that the dealing was fair under the CCH principles.  The FC also noted the importance of reading to the analysis, finding that “act of reading, by itself, is an exercise that will almost always constitute fair dealing.”

Summary By:  Jennifer R. Davidson