Newspaper Databases and "Collective Work" in Copyright Law: A Split Decision in the Ontario Court of Appeal

In Robertson v The Thomson Corporation et al (October 6, 2004, Court Docket C38148, not yet indexed by the Canadian Legal Information Institute), the Ontario Court of Appeal has ruled in a split 2-1 decision on several pre-trial motions involved in a class-action copyright dispute between freelance journalists and The Globe and Mail newspaper and other related parties, over the use of the journalists' articles in archival electronic databases. The newspaper and its co-defendants had argued that the use of the journalists' articles in online databases was an assertion of The Globe and Mail's own copyright in the "collective work" of the newspaper as a whole, as permitted by the Copyright Act, a right which could co-exist with the journalists' own copyright in their individual articles. The Court of Appeal upheld the finding of the motions judge and rejected the defendants' contention. Instead, by a majority, the Court ruled that "when the individual [journalists'] articles are disentangled from the rest of the collective work they are not covered by [T]he Globe [and Mail]'s copyright because their arrangement or link with the collective work is lost". Both the majority and minority judgments included a note of caution regarding the outright adoption of US copyright case law. As expressed by the majority,

"Under the [US] legislation, the publisher's "privilege" is less than the "rights" of the freelance author … Under Canadian legislation, however, a layered approach is used. The publisher of a collective work has a copyright in the collective while the author maintains her copyright in her individual work".

The "collective work" issue may not yet have been laid to rest, however, if any of the parties obtains leave to appeal to the Supreme Court of Canada. In dissent, Justice Blair found that on a qualitative basis, the electronic version of the newspaper contained in the database constituted a "collective work [of the newspaper] or a substantial part thereof" and would therefore have overturned the ruling of the motions judge. As well, in Justice Blair's view, the motions judge and the majority of his fellow Justices of Appeal focused too heavily on an analysis of the electronic search functions involved, thereby giving insufficient weight to the "technology neutral" intent of the Copyright Act. For the full text of the judgment, visit: http://www.ontariocourts.on.ca/decisions/2004/october/C38148.htm. Summary by: The Editor