Blacklock’s Appeal Decided on Mootness and Digital Lock Analysis Left Standing

The Federal Court of Appeal has released its decision in Blacklock’s Reporter v. Attorney General of Canada, 2026 FCA 56. The Court found the matter moot and set aside the declarations granted by the Federal Court on the basis that they "lacked practical utility".

The Court’s reasoning turns on the requirement that declarations must resolve a live controversy. The Court held 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”. Here, the underlying copyright action had been discontinued, leaving no live dispute between the parties. The declarations issued below were tied to the specific facts of Parks Canada’s subscription and were expressly limited to “the circumstances of this case”. The Court found that resolving those factual issues would serve no purpose and would not affect any ongoing rights or obligations. Nor would the second declaration, framed as a general statement about the licit use of a password, have practical utility in future disputes. As a result, both declarations were set aside.

What the Court did not do is equally important. It did not endorse or reject the Federal Court’s analysis of the technological protection measures provisions. The appeal lies from the judgment, not the reasons, and the only issue before the Court was whether the declarations should have been issued. The Court expressly declined to address broader questions about whether a password or paywall constitutes a TPM, noting that such comments below were obiter and unnecessary to resolve the case. As a result, the Federal Court’s reasoning on digital locks remains untouched. The decision below now stands as “reversed on other grounds,” leaving its analysis of fair dealing and anti-circumvention intact but non-binding. CIPPIC thanks James Plotnik of Gowlings, supported by Levon Mouradian, for their able representation in this matter.