Copyright+Legal+Corner

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** The Copyright Legal Corner **
 * //Robertson v Thomson//**

One of the most significant Canadian copyright cases of the last decade is //Robertson v Thomson//. The case arose from a suit brought by a freelance writer in 1996 against the Thomson Corporation. The issue developed when freelance writer Heather Robertson learned that reviews that she had written for the //Globe and Mail// had been included in a subscription electronic database. Similarly, she learned that sections of a book that she had written had been sold for electronic re-use by the Thomson Corporation, the publisher of the //Globe and Mail//.

Joyce Smith noted in 2006 that Ms. Robertson’s work was available behind subscription walls, but she received no additional money for the access. Copyright law in the 1990s did not account for author’s material being repackaged into electronic formats. As freelancers gradually learned, their work was being resold but they did not receive additional monetary reward. Along the case’s slow journey to final decision, Ontario Supreme Court Justice Peter Cumming seemed to side with Robertson, asserting in 2001 that work appearing electronically after appearing in print was separate from the print iteration; it wasn’t just a reproduction (Smith).

While Robertson’s original case moved through the Canadian court system, she and her lawyer filed an additional lawsuit in 2003 against six media companies in whose electronic outlets her work had appeared. This class-action suit was much broader and included all freelance writers in Canada. The six media companies named were sued for $500 million in compensatory damages and punitive damages of $250 million. The point was to force companies that publish newspapers and magazines to pay writers for electronic use of their work, in addition to the originally contracted print work (Hammond 2003).

On October 12, 2006, the Supreme Court of Canada ruled 5-4 that Thomson had to pay writers for electronic publication of articles originally written for print and the writer had to give consent. Specifically, the Court found that media companies had to adhere to the spirit of the Copyright Act to protect authors’ rights even as technology changes (Sheffer, 2006).

A monetary settlement in the case was reached in 2009. The law firm that represented the class of freelance writers, including Robertson, announced that the media companies who had been sued agreed to pay $11 million. Once the attorney and court fees were paid, the amount divided up among the freelancers was estimated at $5.5 million (//Robertson v Thomson, et al//).

Hammond, K. (2003). E-rights battle widens. Quill & Quire, 69 (10). Online.

Robertson v Thomson, et al. Koskie Minsky, LLP. 2009. []

Sheffer, W. (2006). Writers’ rights upheld: the Robertson decision. Copyright & New Media Law Newsletter, 10(4): 8-9.

Smith, J. (2006). Dealing with new life from the morgue: a report on key copyright issues in the Canadian news media. Critical Arts: A South-North Journal of Cultural and Media Studies, 20(1): 112-121.

** Access Copyright Decision will Result in Higher School Fees ** Gary P. Rodrigues keeps track of copyright matters on the slaw.ca weblog. In a posting on July 26, 2010, Rodrigues wrote about a case involving Access Copyright. Access Copyright (AC) argued six years ago that teachers and instructors were blatantly copying materials for classroom use. AC claimed that as many as 250 million pages from textbooks and other materials were being copied every year. The AC argument was that the fee that schools pay for this activity should be increased.

The Copyright Board of Canada agreed and said that the fee per student(K-12) could be raised from $2.57 to $5.16 and a $40 million retroactive payment could be charged, also. The main hit was to K-12 students, but it affected post-secondary students also because faculty often use photocopied coursepacks.

Canadian provincial Ministers of Education disagreed with the Copyright Board and asked for a review. The Federal Court of Appeal ruled on July 26 that the fee and the payment were appropriate.

Rodrigues suggested that this Access Copyright probably was a temporary victory. Changes to the Copyright Act could expand the definition of fair dealing and make many materials accessible for free. For those materials, AC can't charge.

Additionally, schools and universities are stampeding toward electronic access. Schools will just pay for the electronic rights and forget about photocopying and producing paper coursepacks. Rodrigues writes, "The future is in electronic delivery, something that Access Copyright has yet to master."

Rodrigues, G. (2010, 26 July). Access Copyright wins in federal court. Message posted to slaw.ca, archived at []

**Next Steps for Educators and Access Copyright**

The 2010 Access Copyright decision has focused educators’ attention on copyright. Writing in Macleans //OnCampus// magazine, Sarah Petz wrote on December 10, 2010 that in the wake of the Access Copyright decision, educators are having to clarify the discussion on educational copying. Michael Geist points out that the current proposed change about fair dealing in Bill C-32 would enable the Supreme Court of Canada to rule on whether copying for educational purposes can be covered under the fair dealing provision. Meanwhile, Greg Nordal, CEO of Nelson Education, estimates that Canadian textbook publishers generate about $500 million in sales per year. Nelson argues that without judgments like the Access Copyright decision, teachers will make multiple copies of entire books, “completely destroying the market for our materials” (Petz). Currently, fair dealing applies only to materials used for research, private study, criticism, review and news reporting. On February 15, 2011, the Canadian Association of University Teachers (CAUT) testified in the House of Commons Legislative Committee on C-32 in support of educators. CAUT notes that Bill C-32 would expand the categories of fair dealing so that education as well as parody or satire can be added under the fair dealing umbrella. However, CAUT argues that the legislation should state that “fair dealing be permitted for purposes SUCH AS, “ [CAUT emphasis] so that educators do not have to intuit the copyright infringement possibilities offered by technology that is yet to be invented. In addition, CAUT argues that, in cases of non-commercial infringement, financial damages not be assessed against “those who act with a good faith belief that their actions with respect to a work are justified by fair dealing” (CAUT).

Petz, S. (2010, December 8). Of course fair dealing for education is fair. Macleans //OnCampus.// Retrieved from []

Canadian Association of University Teachers. (2011, February 15). CAUT’s appearance before the House of Commons Special Legislative Committee on copyright reform Bill C32. Retrieved from []