Michael Geist

The Supreme Court of Canada released its much anticipated Robertson v. Thomson decision this morning – here is a quick take.  The Canadian version of the U.S. Tasini case, at issue was the rights of freelance writers and the use of their work in electronic databases.  Much like the U.S. case (which clearly had an impact on this case), the court was split.  By a 5-4 majority, the court ruled in favour of Heather Robertson, finding that the reproduction of the freelance articles into a searchable database was not covered by the copyright held by the publishers (whose rights were limited to the compilation of works that comprise the newspaper).

At one level, the split in the court simply reflects a different view on the nature of a converting the content in a newspaper into a database.  The majority (written by Justices LeBel and Fish) thinks that the use is very different and thus no longer part of the publisher's copyright.  From this perspective, information such as date, page placement, etc. is merely "historical data".  The dissent, written by Justice Abella (joined by Chief Justice McLachlin, Binnie, and Charron) argues that the database involves a substantial reproduction of the original compilation and that therefore "the publisher's entitlement under our media neutral Copyright Act is able to adjust the form of its work to suit the exigencies of new media technologies."

At a deeper level, however, the case may signal some differing perspectives about copyright law.

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