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Copyright, collective works, and class actions

In an ongoing class action lawsuit, Dimock Stratton lawyers assisted the plaintiff by making submissions to the Supreme Court of Canada on the issue of copyright in collective works.

This case, pitting freelancers' rights against the publishers' ability to reuse content in another format, is similar to the New York Times Co. v. Tasini case in the United States.

Heather Robertson, the representative plaintiff, wrote freelance articles for publication in The Globe and Mail newspaper in 1995. However, she objected to the subsequent inclusion of her articles on electronic databases (Info Globe Online and CPI.Q) and on CD-ROM on the basis that she had not consented to that further use. The Supreme Court heard argument in this case as a result of an appeal of a summary judgment motion, focusing on whether the electronic databases were reproductions of the "true essence" of the newspaper--the collective work in which the articles were originally published--or merely reproductions of individual articles.

In a 5:4 split decision, the majority of the Supreme Court of Canada ruled in favour of Robertson and her class of freelance authors, holding that the publishers' rights to reproduce the collective work (The Globe and Mail newspaper, containing the freelancers' articles) did not include the right to copy freelancers' articles as a different collective work (a database of individual articles). The majority rejected the publishers' argument that a connection between the electronic databases and the original newspaper was preserved because the databases included references to the original newspaper, the date and page number. Justices LeBel and Fish, writing for the majority, agreed with the United States Supreme Court's finding in New York Times Co. v. Tasini and found that "decontextualization" was critical to the deposition of the case.

The majority decision also emphasized the protection of the authors' rights:

"[Media neutrality] does not mean that once a work is converted into electronic data anything can be done with it... Media neutrality is not a license to override the rights of authors—it exists to protect the rights of authors and others as technology evolves."

 

Robertson is also one of the few intellectual property cases in Canada conducted as a class action.

 

Robertson v. Thomson Corp., 2006 SCC 43