Here’s the judgment from Justice Robert Barnes – which is unequivocally favourable in terms of fair dealing and even pushes the envelope further by emphasizing that what went on here was based upon a “legitimate business reason” on the part of the subscriber/sender to the material and a “legitimate business purpose (i.e. to consider whether the stories required a response or correction)” on the part of the Department.
The judgment clearly rejects the essence of Blacklock’s argument, which was tantamount to asserting that copyright includes the exclusive right to “read” copyrighted material. The judgment does not deal directly with copyright misuse or abuse, though it does note certain “troubling” aspects of Blacklock’s business model and mentions the allegation that this “litigation constitutes a form of copyright abuse by a copyright troll.”
The Government gets costs, and there is a comment from the Court that “offers to settle may have been exchanged”, which may mean that the Government will be entitled to get “double costs” for some or all of this litigation, depending on the timing and content of any offers. We shall see and report in due course.
All in all this is a very clear victory for the Attorney General of Canada and for the cause of fair dealing in Canada. A business model “is always subject to the fair dealing rights of third parties.”
Because a fair dealing analysis is essentially based on fact-finding, and because the fact-finding here was extensive and careful, it is would seem that a successful appeal would be an unlikely possibility. I will update in the event that a Notice of Appeal is filed, which would be due on December 12, 2016. It remains to be seen what effect this judgment will have on the many other outstanding Blacklock’s lawsuits against the Government of Canada, some of its agencies and others.
The Government was represented by Alex Kaufman and Orlagh O’Kelly from the Department of Justice. Blacklock’s was represented by Yavar Hameed.