This article was prepared with the assistance of Coralee Ridder
On March 19, 2026, the Canadian Federal Court of Appeal set aside two declarations issued by Justice Roy of the Federal Court (Canada) that touched on the intersection of fair dealing and technological protection measures (TPM): 1395804 Ontario Ltd (Blacklock's Reporter) v Canada (Attorney General), 2026 FCA 56 (“Blacklock’s 2026”). The decision under appeal (1395804 Ontario Ltd (Blacklock's Reporter) v Canada (Attorney General), 2024 FC 829) was touted as providing much needed guidance in this area of copyright law. Our prior article on the decision is here.
With the declarations set aside, it remains to be seen whether future courts, faced with similar facts, may rely on the underlying reasoning expressed by the Federal Court to reach similar conclusions about fair dealing, TPMs, and their intersection. This is likely to prove especially critical in the context of assessing risks around Artificial Intelligence training practices, with at least one U.S. court tying the ability to rely on a fair use defence to the licit acquisition of training copies. Please refer to our previous article on the topic, here.
In Blacklock’s 2026, the procedural circumstances surrounding the issuance of the declarations led them to be struck and the Judgment overturned. The Appellate Court found that once Blacklock discontinued its copyright infringement action, the declarations sought by the defendant (Parks Canada) lacked any practical utility vis-à-vis the dispute and should not have been made. Although this result means the Federal Court’s declarations no longer stand, the Federal Court of Appeal was careful to identify that “an appeal lies from the Judgment of the Federal Court, not the reasons” [para 17]. Such comments indicate the possibility of future courts adopting (or not) the same reasoning.
As observed by the Federal Court of Appeal, once the underlying copyright infringement action was discontinued, Parks Canada’s motion for declarations about its actions in essence became a reference. Section 18.3(2) of the Federal Courts Act does grant the Attorney General of Canada the option to “refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament … to the Federal Court for hearing and determination”; however, that is a separate procedure and was not engaged in this case.
The Blacklock's 2026 decision emphasizes the critical nature of procedural considerations, and that jurisdiction remains a condition precedent for authoritative judgments to be issued.
Background
The underlying dispute between Blacklock’s Reporter (“Blacklock”), an online subscription news service, and Parks Canada, is part of a series of parallel cases between the same plaintiff and different Government of Canada departments (see also 1395804 Ontario Ltd v Canada (Attorney General), 2016 FC 1255 involving the Department of Finance). Each case involves the access by personnel within a government department to Blacklock’s paywall-protected content through a licitly obtained password.
In the Parks Canada case, Blacklock alleged, inter alia, that Parks Canada violated its copyright by improperly using a legitimately obtained subscription to access, read, and distribute articles within the department. On July 5, 2020 (Sunday), the Attorney General served an amended defence and counterclaim on Blacklock, seeking 10 different declarations that together would clarify that Parks Canada’s actions did not violate the TPM provisions of the Copyright Act and that these actions also amounted to fair dealing. The next day, Blacklock discontinued the copyright infringement action; and the following day, the Attorney General filed its amended claims with the Court and brought a motion for summary judgment.
Although contested by Blacklock on both procedural and substantive grounds, the Court rendered judgment and made the following two declarations:
- Having purchased the only type of subscription available, which was allowing the acquisition of the password needed to access articles produced by Blacklock’s Reporter, Parks Canada’s use of the password in the circumstances of this case constitutes fair dealing under section 29 of the Copyright Act.
- The licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.
Blacklock appealed.
The Federal Court of Appeal’s decision
On appeal, Blacklock characterized the issues under Appeal as relating to “errors” in the Federal Court’s substantive Judgment. The Appellate Court, comprised of Justices Webb, Monaghan, and Pamel, did not agree.
Instead, the Appellate Judges focused on the narrow procedural issue of whether any declarations should have been issued at all in light of the Supreme Court of Canada’s decision in Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, that established: “[a] declaration can only be granted if it will have practical utility, that is, if it will settle a ‘live controversy’ between the parties”.
Not commenting on the Federal Court’s reasons, the Federal Court of Appeal determined neither declaration settled any “live controversy” between the parties or had practical utility.
The first declaration (about fair dealing) was tied to specific facts of the case and premised on Blacklock’s allegation of copyright infringement — once Blacklock discontinued its copyright infringement action, there was no ongoing dispute to resolve.
The second declaration (about passwords) was found to amount to a generic and self-evident statement. There was no finding concerning whether a password amounted to a TPM. It did not engage with any actual issue between the parties. Of note, it was also held that the Federal Court’s finding that “[Blacklock’s] paywall is not the TPM” was obiter dicta because this point was not reflected in either declaration at issue, nor did it form a part of Parks Canada’s counterclaim or their declarations sought. The Federal Court of Appeal however, was careful to note that this should not be interpreted as an endorsement or criticism of this comment of the Federal Court [para 42].
The Judges noted: “The declarations sought by Parks Canada in its counterclaim in relation to the circumvention of a particular TPM were limited to the sharing of the password. Following the discontinuance of the copyright infringement action, the only source to determine the issues was the counterclaim and its requested declarations. In essence the action became a reference to the Federal Court to grant specific declarations.”
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.
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