Law Times

PAGE 4 NEWS March 5, 2012 • Law TiMes Class action tackling copyright in legal documents to go ahead BY KENDYL SEBESTA Law Times documents as it pertains to com- mercial corporations. Writing in Waldman v. Thom- T son Reuters Corp., Superior Court Justice Paul Perell certified a $51-million class action against Thomson Reuters aſter he found several issues brought by Toronto lawyer Lorne Waldman met the test for certification. Waldman, who launched the action in 2010, alleges Thomson Reuters' Westlaw Litigator service infringed his copyright and moral rights, as well as those of other lawyers, by making more than 100,000 pleadings, court mo- tions, affidavits and facta available online in several downloadable formats aſter copying them from court files. None of the allegations have been proven in court. In response, Thomson Reuters, he Ontario Superior Court has certified a class action that will consider the copyright in legal which owns Law Times, argued it had invested substantial amounts for the files produced on Litigator and insisted it nev- er infringed copyrighted ma- terials. Thomson Reuters also argued, among other things, the defences of fair dealing, implied consent, and freedom of ex- pression. In opposing the certification of the class proceedings, Thom- son Reuters further argued that Waldman was attempting to thwart access to public court documents and undermine the province's open-court sys- tem, access to justice, behaviour modification, and judicial econ- omy. "This is not a case where there has been a groundswell of complaints, giving rise to a per- ceived need for access to justice," Thomson Reuters argued in its factum. "Nor is this a case where the proposed class members con- front a barrier to access to justice as a result of either fear of, or lack of awareness of how to protect court documents. Access to these documents is part of our open-court system, and com- pletely uncontroversial. It is even accepted by the plaintiff." But Perell found the test certification for represented a "very low bar" for plaintiffs and limited his function as a gatekeeper to "ensuring that the technical and procedural ele- ments of the test are satisfied, which, subject to some adjust- ments, is the situation for the case at bar." "Viewed globally, the class Thomson Reuters 'will be vigorously defending the claim,' says Andrew Bernstein. their perceived rights." The company went on to highlight the public policy issues at stake. "On the contrary, Litigator serves the recognized and im- portant public policy objective of providing access to publicly filed action will not be unmanage- able and indeed may not have to be managed much, if Thom- son is correct that class mem- bers are not interested in pursu- ing claims," wrote Perell. "The copyright in legal docu- ments is not a settled matter," he added, noting the "serious policy questions" about how much copy- right protection legal documents should have. It's the first time the court will provide specific clarification on these issues in copyright disputes between lawyers and commercial corporations, according to intel- lectual property practitioners. "The central question in this case appears to be, do lawyers re- tain the copyright for court docu- ments when they are on public file?" says Ronald Dimock, a part- ner at Dimock Stratton LLP and a claimant in the action. "Aſter that, the question be- comes whether the court docu- ment is an original document and contains original expressions, which more oſten than not they do. Then, we must ask to what ex- tent can someone else reproduce that content without infringing on the holder's rights?" Dimock adds that although some people could argue there have been many precedents al- ready, the court's ruling marks the first time copyright infringement issues have moved from a mainly "lawyer-to-lawyer issue" to a com- mercial regulation matter. As part of the ruling, Perell certified several common issues raised during Thomson Reuters' defence, including whether the company has a defence to copy- right infringement or the viola- tion of moral rights based on "fair dealing, the open court principle, freedom of expression, the neces- sity of using the idea of the court document as it is expressed, or a business or professional custom or public policy reason. . . ." "Thomson Reuters has reviewed the Superior Court's decision and will be seeking leave to appeal to the Divisional Court," says Andrew Bernstein, counsel for Thomson Reuters and a partner at Torys LLP. "Whatever the outcome of the certification process, Thomson Reuters is confident in its position on the merits and will be vigor- ously defending the claim." LT CORRECTION The feature UNCOVER THE DETAILS OF A CASE FROM EVERY ANGLE Litigator Powerful Insight for Compelling Arguments Litigator from Westlaw® Canada combines litigation-focused research with practice tools to support your strategic decisions and automate your most laborious tasks. Litigator contains Canada's largest collection of online court documents – more than 100,000 skillfully drafted pleadings, motions and facta from leading Canadian cases. Get Better Results Faster with Westlaw® Canada Call 1-866-609-5811 or visit www.westlawcanada.com on the largest law firms in Canada on Feb. 27 con- tained errors in regards to two firms. Torys LLP has 280 lawyers, including 226 in Toronto, 17 in Calgary, and 37 in New York. Davies Ward Phillips & Vineberg LLP has 246 lawyers, including 146, in Toronto, 85 in Montreal, and 15 in New York. www.lawtimesnews.com L a w T i me s

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