Law Times

PAGE 12 FOCUS September 21, 2009 • Law timeS Long-standing freelance case settles for $11 million M BY JULIUS MELNITZER For Law Times ore than a decade after Heather Robertson stood up for freelanc- ers' rights in the early days of the Internet, Th omson Reuters Can- ada and Th e Gale Group have agreed to pay $11 million to settle the class action she launched. Th e case involves alleged copyright infringement of writ- ers' works through unauthorized republication on Internet data- bases. Robertson fi rst fi led against Th omson Corp. in September 1996. Th e action, Robertson v. Th omson Corp., was certifi ed as a class action in 1999. In 2001, Justice Peter Cumming granted partial summary judgment on several key issues, a decision con- fi rmed by the Ontario Court of Appeal three years later. Both parties sought leave to appeal to the Supreme Court of Canada, which was granted. In 2006, a majority of the Supreme Court judges upheld the Court of Appeal's decision, ruling that newspaper publishers were not entitled to republish freelance newspaper articles in their online databases without compensation. However, the newspapers did not have to compensate the authors for CD-ROMs containing the publications in digital form. Newspapers, the court ruled, had a copyright for their publications and therefore had the right to "reproduce the work or any substantial part thereof in any material form whatever." But they could do so only if they preserved the editorial content of the newspaper. Th e databases reproduced the originality of the freelance articles but not that of the newspapers because they decontextualized the material to the point that the articles no longer had an intimate connection with the rest of the writers, paper. Th e CD-ROMs, however, did preserve that connection, ac- cording to the court. Th e settlement included com- pensation for class members, the right to have materials taken off a web site, and donations to groups representing photogra- phers, and illustrators. But things have changed since Robertson launched her lawsuit. "Publishers now routinely enter into written contracts with freelancers setting the parameters of how works can be reproduced," says Elliott Simcoe of Smart & Biggar/Fetherstonhaugh. Still, Kirk Baert of Koskie Minsky LLP, who represents Robertson, says the case will con- tinue to be a benchmark as even newer technologies develop. "What was interesting was how the courts applied old le- gal principles to new technology because the statutes are always a couple of decades behind," he tells Law Times. "When this case got off the ground, the Internet was just gaining momentum, whereas nowadays people get their news solely through the Internet." 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Looseleaf & binder • $227 Releases invoiced separately (1-2/yr) P/C 0406030000 • ISBN 0-88804-168-3 Canadian Patent Reporter case went a long way to raising awareness of the value of intel- lectual property and the right to obtain compensation. "Th is was defi nitely an in- stance where the Class Proceed- ings Act was used the right way in the sense that it gave freelancers a lot more bargaining power than if they had tried to enforce their rights individually," Baert says. Th e settlement, which doesn't involve an admission of liabil- ity by the defendants, also has a number of novel features, includ- ing a provision that ensures that all the funds will be paid out. "We use a point system that gives credit for the number of words in an article and credit for where it was published," Baert says. "We then add up all the points and divide the entire pot pro rata, but no one can get more than one per cent of the total." Th ere's also a streamlined process for making claims aimed at minimizing appeals and administrative costs. "We presume the writers are acting in good faith, and our pro- cess doesn't tie things up with a lot of paper," Baert says. "It con- tains a unique provision giving the plaintiff s' lawyers the right to overrule the denial of a claim by the claims administrator." Somewhat ironically, Koskie For a 30-day, no-risk evaluation call: 1.800.565.6967 CA009 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com CA008 (LT 1-2x4) 1 9/16/09 10:00:52 AM LT0921 Minsky relied heavily on the Internet for giving notice to the class. "Th e Globe and Mail had the notice on its own web site for many months and will have it there again," Baert says. "So did a number of writers' groups' sites, which writers access much more frequently than the legal notice sections of newspapers." Still outstanding are similar actions against the Toronto Star, Rogers, CanWest, and other pub- lishers of online databases. "Th ese cases have been in abeyance pending settlement of Robertson v. Th omson," Baert says. LT Robert H . Barrigar, Q.C. Tony Duarte The Honourable Julie Thorburn and Keith Fairbairn Editor: Louis H. Milrad Edited by Marcus Gallie, Ridout & Maybee LLP Fourth Series (Volumes 1 to 65): Edited by Glen Bloom, Osler, H oskin & H First, S H Founding Editor: Gordon F. H enderson econd and Third Series: Edited by Gowling, Strathy & arcourt LLP enderson, C.C., Q.C., LL.D. Rose Ann MacGillivray

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