Litigation…
in cra-briefings40 · June 30, 2007
HEATHER ROBERTSON AND THE SUPREMES
In October the Supreme Court of Canada handed down its decision in a case brought by Heather Robertson, a freelance writer, against Thompson Corporation and others. The case arose from the appearance of articles Ms. Robertson had written for the Globe and Mail in the Globe’’s on-line databases and in a CD-Rom version. Ms. Robertson argued that, as a freelancer, she had only agreed to the publication of her materials in the physical paper, not in any digital forms. This case was brought as a class action, meaning that Ms. Robertson represents all freelance writers who had worked for the Globe and Mail and whose works had been included in its on-line databases and in its CD-Rom products.
The case considered whether copyright in the individual works written by Ms. Robertson may have been infringed or whether the newspaper, as the copyright owner in the collective work, was simply exercising its own copyright rights.
Five Judges of the Court entered the majority decision which determined that the newspaper should have gotten the consent of the authors before including their works in on-line databases. The majority decision states, “The central issue on this appeal is whether newspaper publishers are entitled as a matter of law to republish in electronic databases freelance articles they have acquired for publication in their newspapers – without compensation to authors and without their consent. In our view they are not.” However, the majority also held that reproduction of the material in a CD-Rom version, where the integrity of the original publication was maintained, was an acceptable exercise by the publisher in view of its own copyright rights. For the majority of the Court, the issue then became whether or not the freelancers had impliedly consented to the use of their material in electronic databases. The Supreme Court did not determine this point, so the case will now go back to the trial division to determine whether or not the freelance writers had implicitly licensed the Globe and Mail to use their material in their on-line databases.
The four judges who gave the minority decision would have determined that the newspaper was within its rights as copyright owner of the collective work in engaging in the digital reproduction in both on-line databases and CD-Rom format.
There are many subtle issues in the case which will continue to generate much discussion among copyright scholars and artists alike. For those who are interested, you can find the Robertson decision at the Supreme Court of Canada website www.scc-csc.gc.ca or obtain more information from the Professional Writers Association of Canada www.pwac.ca
VIDEO BLOGGER IN U.S. FEDERAL PRISON
In our last Briefings we reported that 24-year-old video blogger and freelance journalist, Josh Wolf, had been jailed in the United States for contempt of court when he refused to hand over unpublished material to the US grand jury. The United States appeals court has heard the matter and refused to overturn the contempt decision of the lower court. For more information on this situation see http://freejosh.pbwiki.com.
ANOTHER P2P SERVICE FOUND GUILTY
Federal District Court Judge Stephen Wilson has found Streamcast Networks, the distributor of the popular P2P software Morpheus, guilty of massive copyright infringement. The court held that Streamcast built a business that relied on copyright infringement and found that “In the record before the Court, the evidence of Streamcast’s unlawful intent is overwhelming”. The court made this decision on an application for summary judgment, which means that the evidence presented was so substantial that no legitimate defence could have been raised at trial. Streamcast has indicated that it may appeal this decision. For more information on this decision please see www.tinyurl.com/h6kzz
LIMEWIRE FIGHTS BACK
In the last Briefings, we reported that Limewire, another American P2P service, had been sued by US record labels and the RIAA. In September, Limewire filed a countersuit against the RIAA alleging that the RIAA conspired to drive file-sharing companies out of business, and made licenses for the legal use of copyright protected works unreasonably restrictive. We will continue to follow this case. For more information please see http://online.wsj.com or www.news.com.com
GOOGLE FACING FINES IN BELGIUM
In a case brought by Copipress, the organization that manages copyright for French and German language newspapers in Belgium, the court has ruled that Google is not permitted to reproduce snippets of newspaper articles for its news amalgamation service. As part of its order, the court required Google to post the decision on its Belgian news site and warned that failure to do so would result in fines of 500,000 € daily. Google refused to post the order and has appealed the fine to the Court of Appeals which has found that both the order to post the judgment and the imposition of the fine were reasonable. The Court of Appeal heard an appeal on the merits of the case in full in November, however, indicated that its decision will not be rendered until 2007. For more information on this case see www.news.com.com