Copyright attempts to balance the rights of authors with the
rights of users. It's this tension - copyrights vs. user rights
- that makes copyright so fascinating (...to some people).
In 2012, Parliament enacted some changes to Canadian copyright
law, which included a number of so-called "user rights"
or exceptions to infringement, some of which were conditional on
rules dealing with the circumvention of technological protection
measures. I'll give you an example: under section 29.23,
recording a TV program for time shifting on your PVR is
not an infringement of copyright as long as you
did not circumvent a technological protection measure (or
"TPM"). So circumvention of a TPM can take you outside
the benefit of the exception, with the result that the recording
would constitute an infringement.
A "technological protection measure" is, according to
the Copyright Act any
"effective technology, device or component" that controls
access to a work and whose use is authorized by the copyright
owner. It is deliberately broad. The Blacklock's case
dealt with a subscription-based online newsletter published by
Blacklock's. When their CEO was mentioned in a Blacklock's
article, the CVA bypassed the subscriber paywall to access the
article. Did the CVA hack into the system and then scrape and
republish the Blacklock's content? No (although such conduct
might have justified the $13,000 in copyright infringement damages
that were awarded by the judge). The CVA obtained a copy of the
article via email, from a colleague who did have a
According to this case, circumventing a technological protection
measure includes obtaining a copy of an article by email, where the
article sits behind a paywall. The good news is that no hacking
skills are required!
Since this case will not be appealed, it stands as the leading
case, although it has been called controversial, bizarre and an extraordinary misreading of copyright
law. Since it is the decision of an Ontario
small-claims court, it is not binding on other courts in Canada.
And since Blacklock's is pursuing copyright infringement claims
against others - there are 10 claims currently filed in the Federal
Court - this issue
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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