Tag: Paywalls

Blacklock’s Reporter (BR) v Attorney General for Canada (AGC): Score One for “David”

A cartoon-style illustration depicting a young boy facing a giant warrior, with a dramatic background. Text overlays include 'BR' and 'AGC'.

Image: Shutterstock (modified)

The ongoing David vs Goliath tussle involving a small web-based Ottawa public affairs journal, Blacklock’s Reporter (BR), that took on the Government of Canada (GOC) over a series of alleged copyright infringements, has just seen a significant new development.  On March 19, 2026, the Federal Court of Appeal (FCA) announced its decision in the Parks Canada case, upholding BR’s appeal of a 2024 Federal Court ruling delivered by Justice Yvan Roy. Roy had declared (1) that the use of a password by Parks Canada to access BR content constituted fair dealing under the Copyright Act, and (2) that the licit use of a password does not constitute circumvention of a TPM (technological protection measure, often referred to as a “digital lock”) as defined in the Copyright Act. That decision and its attendant declarations are now vacated. Costs were awarded to BR. This is an important victory for rightsholders and businesses that depend on TPMs to protect paywalled content. It’s also a black eye for the government’s litigator, the Attorney General for Canada (AGC), which sought these declarations as a way of justifying alleged repeated cases of copyright infringing activity by various GOC Departments and agencies.

Let’s review the history. BR is a subscription-based digital journal. Its stock in trade is “Inside Ottawa” investigative reporting. It is, frankly, a thorn in the side of government which is precisely why its role is so important. Its breaks the stories that well-staffed and well-funded departmental communications shops don’t want covered. It doesn’t print government news releases; instead, it provides investigative stories to its customers. An individual can subscribe to BR on an annual basis for a relatively modest sum, currently $314 plus tax, which compares favourably to the digital subscription rates of leading national media organizations. However, larger entities like companies or government agencies that have multiple users require institutional subscriptions. The cost depends on the number of subscribers, i.e. the degree of access. There is nothing unusual about this; it is a common business model. That business model depends on controlling access to the paywalled content. Passwords are commonly used for this purpose.

For a number of years, BR has been fighting the GOC over the government’s unwillingness to pay for bulk subscriptions for its various agencies. Because BR had difficulty in knowing how many employees within a given agency had access to its content, it filed Access to Information (ATI) requests to obtain this information. It then used the ATI revelations–which confirmed there were multiple users (in some cases, thousands) who were not covered by the subscription to BR– to bring suit for copyright infringement against these government agencies. This led the government’s lawyers, through the Attorney General for Canada (AGC,) to accuse BR of entrapment and using copyright trolling as a business model. This ludicrous accusation, which in effect suggests that BR only investigates and reports on what the government is doing in order to sell bulk subscriptions to government agencies, was firmly and rightly rejected by the courts. Given that BR was only suing for the cost of an institutional subscription, it seems evident that their sole objective was to be paid appropriately for the use of their services. However, despite the Court’s repudiation of the trolling accusation, to date BR has not been successful in proving copyright infringement on the part of the GOC and its agencies. The successful appeal opens up the possibility of further court action.

The Parks Canada case was one of BR’s first attempts to assert its copyright, as I discussed in an earlier blog post. In 2013, a Parks Canada employee accessed the BR website and purchased an individual subscription. She then shared the password she obtained with a number of other employees within the agency. BR sued, arguing this was copyright infringement and a violation of its terms of service. The AGC on behalf of Parks Canada contended the use was a fair dealing for research purposes. The nub of the issue was whether the content had been accessed legally, which is a requirement to be able to exercise the fair dealing provisions of the Copyright Act (Section 29). Fair dealing (that is, use without permission for specified purposes) does not apply if the content is protected by a TPM that has been circumvented. Circumvention is described in the Act as using descrambling or decryption or to “otherwise avoid, bypass, remove, deactivate or impair” the TPM. But what was the TPM (the password or the paywall?) and was it “bypassed”? It was a complicated scenario. As was its right, BR announced in 2021 that it had decided to discontinue this particular case and instead focus on infringement that had occurred elsewhere, in another GOC agency.

That should have been the end of it but for the action of the AGC, which did an end-run on BR’s discontinuance motion. This was was due to be officially filed on Monday morning, July 5, 2021. The AGC filed an application for summary judgment and a counterclaim (on a Sunday yet, July 4, the last day possible for such action) seeking the declarations mentioned in paragraph one. The original plaintiff, BR, thus became the respondent. The AGC sought to use the Parks Canada case, which the plaintiff had chosen to discontinue, to obtain broad declarations it could use in other cases brought by BR. For example, it sought a broad declaration that a password was not a TPM (which would imply therefore that password sharing was legal). However, the Federal Court declined to address that issue, limiting its decision to the facts of this one case. Having been forced to defend a case it had sought to discontinue, becoming in effect the respondent, and having lost, BR appealed. It has now been vindicated. As Appeal Justice Wyman Webb of the Federal Court of Appeal (FCA) clearly stated;

“…the Federal Court erred in making the declarations. I would allow the appeal and set aside the Judgment of the Federal Court”.

What has been the reaction in the free-access community that had so openly lauded the initial Federal Court decision? University of Ottawa professor Michael Geist, who crowed that the original decision, now overturned, was a “huge win” for users of copyrighted content–at least those who don’t want to pay for the paywalled content they use—has remained silent. For many years Dr. Geist has been closely associated with CIPPIC (the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa) which was a third-party intervenor in the case, supporting the AGC. While Geist has remained silent, CIPPIC has commented, trying to minimize the impact of the decision by dismissing it as a technical issue. Although Justice Roy’s declarations have been set aside, CIPPIC tries to salvage some usable timber from the wreckage by claiming that his views on fair dealing and passwords remain as obiter (non-binding opinions). However, as this legal blog notes,

“This appellate ruling effectively nullifies the precedential value of the judgment….Moreover, the FCA explicitly noted that the court’s findings…that Blacklock’s paywall was “not the TPM” (as distinct from the password) was obiter dicta and not binding. While the FCA declined to endorse or criticize this comment, it appears that the FCA was skeptical of the findings of Justice Roy.”

Retired IP lawyer Howard Knopf, who maintains a blog titled “Excess Copyright” (which tells you all you need to know about his views on copyright), has written extensively on the BR Parks Canada case over the years. Back in August of 2024, after Justice Roy’s decision against BR, he commented that “I would frankly be surprised, but not shocked, if BR actually does appeal.” He thought BR had more to lose than to gain from doing so. Once BR had launched its appeal, Mr. Knopf informed the world that “the jurisprudence and the factual record suggest that Blacklock’s will lose the appeal.” That was clearly his belief, but he backed it up by asking ChatGPT (I am serious), which agreed that BR’s appeal would be dismissed and Justice Roy’s decision affirmed in all respects. Then came the Appeal Court’s decision. Oops. How to explain that? Easy. It was a “pyrrhic victory”. Blame ChatGPT. After all, it can’t be expected to be right all the time.

Why was the victory so “pyrrhic” (meaning not worth the cost of victory)? Knopf doesn’t say, although he is forced to acknowledge that the AGC’s motion for summary judgment has been dismissed, the declarations are voided, and costs have been awarded to BR. Having got the Parks Canada case–which it wanted to discontinue–set aside, BR is free to pursue other options, and it may do so. While Justice Roy’s views on fair dealing have not been reversed, they have also not been accepted. They have been nullified (set aside). This is not a pyrrhic victory; it is real and substantive.

The Government of Canada has deep pockets when it comes to litigation. Rather than waste these taxpayer-funded resources in pursuing small businesses who are seeking to get paid fairly for their work, as it clearly did with its “too clever by half” legal manoeuvre on the Parks Canada case, it should walk its talk about supporting Canadian media. This means doing the right thing and paying for the access it provides to its employees. Instead, it unleashed the legal dogs at AGC to try to teach BR a lesson. That strategy has just blown up in its face. Score one for David.

© Hugh Stephens, 2026. All Rights Reserved.

Paywalls and News Publishing: There Should be No Ambiguities

An illustration of a laptop displaying a padlock icon, surrounded by images, documents, and a credit card, symbolizing online content security and paywalls.

Image: Shutterstock.com

In trying to search for the right analogy to explain the obvious,–i.e. if a news organization puts up a paywall, it is illegal to bypass or hack it to get at the content and, if you’ve paid for access, that doesn’t mean you can share it with all your friends–I have come up with the old-fashioned movie ticket as the comparator. When there is a show at the local cinema you want to see, there is normally only one legal way to watch it. Buy a ticket. And once you have used your ticket to watch the show, you don’t get to give it to someone else to see the next showing, and the next, and the next. Perhaps this is all too obvious, yet people seem to have great difficulty in getting their heads around the simple fact of what a news site paywall is, and why it is there. It’s really pretty simple. It is there to provide access to content (like a ticket) but also to limit access (for those who don’t have a ticket). It is the basic element of the online business model, for news access certainly but also for other forms of content, such as streaming entertainment.

I don’t understand why some people think they should have free access to content that others pay for. There is always someone who wants to beat the system and then thinks up some excuse to justify their actions. I freely admit that paywalls can be annoying, especially if you are surfing the web and come across a random article that you want to read in the Moose Jaw Monitor or the Peoria Progress. It’s almost always all or nothing. No free samples; just an annual subscription, although likely discounted for the first year. But if all you want is that one article there never seems to be a “pay by the item” option. It’s all or nothing. I have come to the conclusion that in most such cases I can either live without it or sometimes, if I search hard enough, I can find the same thing elsewhere, unpaywalled. What I don’t do is hack it.

A recent discussion of the ethics of paywalls examined the thorny question of whether it was ok to cheat—but just once in a while and under certain circumstances. The unconvincing conclusion: it depends. However, if you believe in the value of curated news–and most people do although they are remarkably resistant to paying for it (a recent Pew Research Center survey indicated that 83% of Americans had not paid for news in the past year; in Canada the numbers are comparable with 15% saying they were willing to pay, up from 11% a year earlier)—then it is only logical that the more free rides people take, the less responsible news coverage is going to be produced. You are eating your own seed grain. As someone put it, the garbage is free and the quality stuff has to be paid for.

The most recent example of success in combatting paywall-busters was the recent announcement that the News Media Alliance, the trade association in the US for major news publishers, had secured the removal of a website that existed to enable users to bypass paywalls, known as 12ft.io. It was self-described as a 12 ft. ladder to get over a 10 ft. wall. According to an article in the Verge, the site also allowed users to view webpages without ads, trackers, or pop-ups by disguising a user’s browser as a web crawler, giving them unfettered access to a webpage’s contents. Now it is out of business. The Alliance doesn’t say how it achieved this feat but does say that it will “continue to take similar actions against other purveyors of unauthorized paywall bypassing technologies.”

While certain elements of the public (academics? other journalists? researchers?) seem to think they can lay claim to justifications to bypass paywalls, an act that is illegal in both the US and Canada if a “technological protection measure” (TPM), aka a digital lock, is circumvented, the most egregious example of paywall-busting is the Government of Canada itself, the same government that is responsible for the Copyright Act. As I have noted a couple of times, (“The integrity of journalism paywalls is under threat. The Government of Canada should settle the Blacklock’s case”; “Does the Trudeau government really support Canadian media? Saying One Thing but Doing Another”), if the Government of Canada, which spends millions on media and communications, cannot be bothered to obtain a licence to access paywall-protected material, how can they expect ordinary citizens to respect paywalls.

 The issue is the $148 individual subscription taken out by an employee of Parks Canada back in 2013, a subscription that the Government of Canada through the Attorney-General argues should allow it to reproduce and pass around individual articles within a large government department without obtaining an institutional subscription. This all hinges on a complicated case, originally brought by Blacklock’s Reporter, an online investigative journalism enterprise, but then pursued by the Crown after Blacklock’s withdrew, in which the A-G argued that it was entitled to access the paywalled content on the basis of fair dealing. While it is illegal to circumvent a TPM/digital lock for the purpose of accessing TPM-protected content, the issue was whether a password constitutes a TPM. Logically, I think most people would assume that it does, but the judge ruled that evidence had not been presented to conclude that was the case.

One line of argument is that a password is not a digital lock; rather it is a digital key to a digital lock (TPM). Therefore if someone licitly obtains the key (the password), are they entitled to share it with others as long as the purpose of the sharing is for a fair dealing purpose, such as research or education? That is the nub of the issue. Some observers proclaimed that this case proved that fair dealing trumped or allowed the bypassing of a TPM. That was not the court’s conclusion, as I pointed out (here) but the ruling effectively gutted password protection for businesses. A recent internal memorandum produced for the Minister of Canadian Identity and Culture by his department noted that “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,” …“Rights holders may be concerned that passwords and paywalls are no longer seen as effective technological protection measures.”

The ruling is now under appeal, with a decision expected later this fall. Blacklock’s is a small David pitted against the taxpayer-funded, deep-pocketed Goliath of the Government of Canada, but I understand they may be getting some financial help from other paywall-dependent businesses. I hope so. The right thing to do would be for the Government of Canada to settle with Blacklock’s but maybe this wouldn’t remove ambiguities about the role of paywalls. An appeal court ruling may be needed. Stay tuned.

In the meantime, inconvenient as it may be, and recognizing that it is impossible to subscribe to everything you could possibly want at any given time, respect the integrity and the work of the journalists and their employers who bring you curated news, commentary and valuable reportage. Pay for what you can–and play by the rules for the rest.

© Hugh Stephens, 2025. All Rights Reserved.