Copyright in the News

October 13, 2006

The Supreme Court of Canada has clarified a copyright issue of significance to freelance journalists and newspaper publishers who do not have iron clad agreements concerning various forms of publication.

Heather Robertson, a freelance author, wrote two articles that were published in a 1995 edition of the Globe and Mail, one of Canada's national newspapers. The agreement between the parties did not address copyright ownership or publication rights. Upon learning the newspaper inserted her articles in two electronic databases and a CD-ROM, Ms. Robertson commenced suit for copyright infringement, which was eventually certified as a class action. The databases included information for each article, identifying the publication date, page number and contextual information. However, other traditional items were omitted from the database such as advertisements, graphics, daily information and obituaries.

In a 5-4 split of the Court, the majority found that the newspaper publisher cannot republish freelance articles in other mediums without compensating the authors and obtaining their consent, given that the databases do not represent a reproduction of the original newspapers. The database is a compilation of individual articles which are detached from the original collective work. While newspapers that own copyright can "reproduce the work or any substantial part thereof in any material form whatever" under section 3 of the Copyright Act, the databases are collective works of a different nature from the original newspaper.

The decision is the result of a decade-long battle in the internet age of evolving digital rights. Valadares Law Group strongly recommends that both authors and publishers of copyrighted works agree on the extent and form of publications in advance, especially as new forms of copyrighted works take shape.