Editorial: Federal ruling puts media future at risk

A May 31 ruling by Federal Justice Yvan Roy on copyright use and sharing passwords has the potential of further harming the viability of media in Canada. The ruling, against independent media company Blacklock’s Reporter, found that federal government employees sharing a login and password to view pay-walled content was allowed. The implications of this ruling for online media is dire.

The legal action by the company against the government began in 2016. It was discovered that a Parks Canada employee had bought a one-year subscription to the specialty outlet – and that the account information was shared with other employees within that department. Blacklocks focuses on reporting on the federal government, with a specialty for filing Access To Information requests. The company discovered the mis-use of the account, and filed against the government arguing it was trampling over copyright rules. Last week, the court disagreed.

In his ruling, Justice Roy concluded that the evidence and existing law, “does not permit the Court to consider if a password constitutes an effective technology, device or component.” His ruling sided with the fair use “for research purposes” under the federal Copyright Act. What this means for media companies, and for that matter any digital company with a subscription or paywall, is that fair use means open season.

In a statement, Blacklock’s Reporter shareholders disagree with the court’s decision saying, “Since 2016, we have tramped in and out of Federal Court hearings to uphold Canadian publishers’ centuries-old right to sell subscriptions and prosecute shoplifters. The biggest corporation in the land, the Government of Canada, gained new powers to steal from the littlest publisher.”

Many traditional print media have migrated to some form of online platform, often now with a paywall. Just as a reader pays for a printed copy of a newspaper at a store, they pay for access to read those stories online. For many companies, this has helped staunch some of the bleeding from losses in print subscription and advertising revenue. Justice Roy’s ruling establishes it is okay for federal government staff to share account information for “research purposes”. If federal employees can share passwords to “research” different news sites, what is to stop anyone else from doing the same? Based on this ruling, which may be appealed, the risk of abuse is high – and not limited just to media companies. Password sharing will become the next grey market.

Online streaming companies like Netflix and Disney+ have clamped down on password sharing of streaming service accounts in recent months. More and more news websites are using password protection to limit sharing, in order to see the revenues needed to survive. The Court’s ruling that the use of a password is not copyright protection will allow more unpaid sharing of content “for research purposes.” This will cut exceedingly small revenues to even smaller amounts, dooming more companies to economic hardship and failure.

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