A Leading Canadian IP Case: Electronic Rights of Freelance Authors and Media Neutrality

(Robertson v Thomson Corp, 2006 SCC 43)

Heather Robertson, a Canadian writer, authored two freelance articles that were published in The Globe and Mail newspaper in 1995. The publisher subsequently archived these articles in three electronic databases: two online databases (Info GIobe Online and CPI.Q) and a database stored on CD-ROMs. The online databases allowed users to search and retrieve individual articles stored in the databases, which included articles from other periodicals. The CD-ROMs were also searchable, but articles were presented together with the other articles from the same edition of the same newspaper.

Robertson objected to the republication of her articles in these databases, and began a class action lawsuit in Ontario on behalf of journalists against The Globe and Mail. The main legal question before the courts was whether a publisher had the right to republish articles into electronic databases, given the provisions of the Copyright Act.

In the Supreme Court of Canada (SCC), the freelance authors won by a narrow margin with respect to the online databases, with five judges agreeing with their position while four judges dissented. However, the entire Court held that the archiving of the articles in the CD-ROMs was permitted because, unlike the situation regarding the online databases, the articles in the CD-ROMs were not “de-contextualized”, and the newspaper had the right to reproduce its works in this manner. Further, staff journalists (as opposed to freelancers) could not object to the republication of their articles in any of the electronic databases. Interestingly, one of the five majority judges, Justice Rothstein, had not yet been appointed to the SCC at the time of the hearing, but cast his vote based on the transcripts and a video recording of the proceedings at a “re-hearing”.

An important aspect of this decision was the development of the concept of “media neutrality” (or “technological neutrality”), which was accepted by all of the judges of the SCC. Media neutrality in the context of copyright law refers to the notion that the principles of the Copyright Act should continue to apply to new technologies and platforms. The concept of media neutrality recently resurfaced in the SCC’s decisions last year in its “Copyright Pentology” (reported here).

James Kosa, who is currently working on a case that builds on Robertson, notes how Robertson changed the copyright landscape:

“The Robertson case is important to me because it recognized a class action in copyright to be legitimate at the highest level of court. There are many barriers to certifying a class action involving copyright because the cause of action is typically only made out in copyright once it has been proven that the plaintiff is the owner of a copyrightable work. Since each work of the class members is invariably different from the others, tying all of those causes of action into a single class can be challenging. Robertson showed that courts would contemplate such class actions, which I think has interesting implications for online publishing industries of all kinds.

“Another interesting aspect of Robertson was the recognition by the Court that there is a distinction from a copyright perspective between a literary work in one mode of expression (in the form of a newspaper article in print) and a digital version of that same work. It has set a foundation for digital rights in literary works being distinct from physically published works, and led to a flurry of activity in the publishing world to secure digital rights.”

Summary by: Cheryl Cheung

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