Appeal court trims TPM ruling
A recent federal update shows the Court of Appeal vacated some declarations in a tech‑protection case but deliberately kept the court’s fair‑dealing analysis intact, especially on technological protection measures (TPMs). That split outcome is being cited as a nuanced precedent for future trade‑law and copyright overlap cases. (x.com)
A Canadian appeal court wiped out two declarations in Blacklock’s Reporter’s fight with Parks Canada, but it did not disturb the lower court’s reasoning on fair dealing and digital locks. (canlii.org) The Federal Court of Appeal ruled on March 19, 2026 in *1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2026 FCA 56*. It set aside declarations from a May 31, 2024 Federal Court judgment, *2024 FC 829*, after Blacklock’s had already discontinued its copyright action. (canlii.org) The underlying dispute started with Parks Canada employees sharing a paid Blacklock’s password to read and circulate articles about the department. In 2024, Justice Sébastien Grammond? No — it was Justice Roy in Federal Court — said that use was fair dealing for research and said licit use of a password was not circumvention on those facts. (smartbiggar.ca; canliiconnects.org) A technological protection measure is the legal term for a digital lock, like a password gate or access-control tool. Canada’s Copyright Act bars circumvention of those measures in section 41.1, while section 29 preserves fair dealing for purposes including research. (laws-lois.justice.gc.ca; laws-lois.justice.gc.ca) The 2024 ruling drew attention because it tried to fit those two parts of the statute together. Roy held that fair dealing remained part of the Copyright Act’s basic balance and, on the evidence before him, neither the paywall nor the password automatically defeated that defense. (smartbiggar.ca; markwelllaw.com) The appeal court did not endorse those declarations as binding relief because it said there was no longer a live controversy once Blacklock’s dropped its claim. Smart & Biggar, summarizing the decision, said the court stressed that “an appeal lies from the Judgment of the Federal Court, not the reasons.” (smartbiggar.ca) That procedural split left lawyers with less formal precedent and plenty of usable analysis. CanLII Connects said the appeal “nullifying” the declarations reopened live questions about whether password sharing is circumvention and how fair dealing interacts with digital locks. (canliiconnects.org) The case also sits inside a longer run of Blacklock’s lawsuits against federal entities over internal sharing of subscription articles. A 2016 Federal Court decision involving the Department of Finance had already found internal circulation of articles mentioning the department could qualify as fair dealing, though it did not decide the technological protection measure issue. (smartbiggar.ca) Another earlier case pointed the other way. Smart & Biggar noted that in a 2015 Ontario Small Claims Court matter involving the Canadian Vintners Association, Blacklock’s persuaded the court that a password could count as a technological protection measure and that fair dealing was unavailable after circumvention. (smartbiggar.ca) The result is a narrower appellate ruling than either side might have wanted: the declarations are gone, the reasoning survives in the background, and the next court to face a paywall-and-password dispute will have to decide how much of Roy’s analysis to carry forward. (smartbiggar.ca; canliiconnects.org)
