UNSUBSCRIBED: Federal Court of Appeal Overturns Lower Court’s Judgment Issuing Declarations in News Subscription Summary Judgment

On March 19, 2026 the Federal Court of Appeal released its decision in 1395804 Ontario Ltd. (Blacklock’s Reporter) v Canada (Attorney General), 2026 FCA 56, overturning two declarations involving fair dealing and technological protection provisions of the Copyright Act issued by the Federal Court on the basis that they lacked practical utility.

The appellant, Blacklock’s Reporter, is a subscription-based news corporation focusing on political affairs of Canada’s federal government. The appellant had brought a number of actions against different federal government departments and Crown corporations alleging copyright infringement, including the underlying action against Parks Canada. Blacklock’s Reporter had alleged that, although a Parks Canada employee had bought a subscription to its content, Parks Canada had improperly used that subscription to access, read, and distribute articles to others in the department in a manner contravening the Copyright Act. In particular, Blacklock’s Reporter alleged that Parks Canada circumvented the news corporation’s technological protection measures by sharing the password given upon subscription internally to other employees to access its news content, in a manner contravening section 41 of the Copyright Act.

While Blacklock’s Reporter discontinued the action against Park’s Canada in July 2020, the Attorney General nevertheless brought a motion for summary judgment, seeking ten different declarations from the Court. The Attorney General indicated to the Federal Court that the summary judgment motion (and accordingly, the declarations sought), would help resolve the remaining copyright actions against the other federal and Crown corporation defendants.

After hearing the motion, the Federal Court chose to issue two declarations. First, it issued a declaration that, “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.” Second, it issued a declaration that “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’s Reporter thereafter appealed this decision, leading to the decision at hand from the Federal Court of Appeal.

The Federal Court of Appeal found that the only issue in the appeal was whether these two declarations ought to have been issued in light of the Supreme Court of Canada’s decision in Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12. In Daniels, the Supreme Court explained that “[a] declaration can only be granted if it will have practical utility, that is, if it will settle a ‘live controversy’ between the parties.”

With respect to the first declaration, the Federal Court of Appeal explained that the declaration was inextricably linked to the lower court’s factual findings in respect of the circumstances surrounding Parks Canada’s subscription and use of articles. As the underlying copyright action is discontinued, there is no longer a live controversy in respect of Parks Canada’s subscription and access to content.

With respect to the second declaration, the Court found this declaration also could not settle a live issue between the parties. This is because the declaration simply amounts to a “generic statement” that, if a password has been acquired authentically, and if the password is considered to be a technological protection measure, then its use should not be prohibited. Thus, the second declaration did not make any findings about whether the subscription password was indeed a technological protective measure under the Copyright Act, which may have helped settle issues in the ongoing litigation against other Federal and Crown parties.

Accordingly, the Court of Appeal found that the Federal Court erred in issuing the declarations. The Court of Appeal thus allowed Blacklock’s Reporter appeal, set aside the Judgment of the Federal Court, and dismissed the Attorney General’s motion for summary judgment.