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Supreme Court of Canada Rules in Favour of Freelance Writers
On October 12, 2006, the Supreme Court of Canada (the “SCC”) released its decision in Robertson v. Thomson Corp. The case involved a class action suit brought against the Globe and Mail Newspaper (the “Globe”) by Heather Robertson (“Robertson”) alleging that the Globe’s use of freelance articles in electronic databases was an infringement of the authors’ copyright.
In 1995, Robertson contributed two articles that were published in an edition of the newspaper and subsequently included in three electronic databases. Robertson’s argument was twofold. First, the reproduction of her articles in the electronic databases was not protected by the Globe’s right, under the Copyright Act, to reproduce the newspaper or any substantial part thereof in any material form. Second, the Globe did not have permission to publish her articles in the electronic databases as there was no written licence agreement and no licence could be implied since the Copyright Act requires all licences to be in writing.
On the first issue, the SCC ruled, in a 5-4 decision, that the inclusion of Robertson’s articles in two of the three electronic databases was not a reproduction of a substantial part of the newspaper edition. The majority held that determining whether a “substantial part” of the newspaper had been reproduced required a consideration of whether the essence of the newspaper had been preserved. In the court’s opinion, the essence of a newspaper is its editorial content, i.e. the selection of articles for a particular edition of the newspaper. Two of the three databases did not sufficiently preserve this essence as the content became too decontextualized relative to the edition in which they were included. The dissenting opinion disagreed, stressing the importance of media neutrality and the fact that the substance of the newspapers had been preserved in the electronic databases.
On the second issue, the SCC unanimously held that only an exclusive licence must be in writing and that the issue of whether Robertson had granted the Globe an implied licence to reproduce her articles in the electronic databases should go to trial.
For a copy of the decision, visit: