Scope of Reproduction of Collective Works Narrowed by Supreme Court of Canada

Newspaper publishers are not entitled to republish freelance articles in electronic databases without compensation to the authors and without their consent, according to Canada's highest court. Heather Robertson, a freelance journalist, had objected to the presence of articles she had written for The Globe and Mail in two online databases and on a CD-ROM, and filed a class action lawsuit claiming damages. The freelance articles in the databases were stored and presented along with thousands of other articles by publication date, page number and other contextual information. The CD-ROM contained articles from The Globe and Mail and other newspapers presented in a fixed and finite format, substantially similar to the context in which they were originally published. The Supreme Court found that the concept of "˜media neutrality' in the Copyright Act (Act) did not mean that simply because an article was converted to digital format, anything could be done with it; instead, the resulting work must still conform to the requirements of the Act. Newspaper publishers own the copyright in the collective work of a newspaper and have a right to reproduce a substantial part or the entirety of that collective work, but do not have the right, without the consent of the author, to reproduce individual freelance articles separately or as part of new compilations. The reproduction of freelance articles in a database is a "˜decontextualized' reproduction, not simply a reproduction of a substantial part of the original work or the original collective works joined together. It is a compilation of a new kind that, without authorial consent, infringes the copyrights of freelance authors whose works appear in those databases. The reproduction of a compilation or collective work need not preserve both the selection and arrangement of the original work, but must reproduce the editorial context. The Court found that the reproduction of freelance articles in databases decontextualizes the work to the point where they no longer maintain an intimate connection to the editorial essence of the original collective work. As a result, the reproduction of freelance articles in a database represents a reproduction of a new compilation and an infringement whereas, conversely, the reproduction of the freelance articles on the CD-ROM did not represent a new compilation; rather, the format maintained the editorial essence of the original collective work. The case is Robertson et al v Thomson Corp, 2006 SCC 43 and is found at: http://www.canlii.org/ca/cas/scc/2006/2006scc43.html Summary by: Jason Young