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.
The majority is clearly concerned that the concept of media neutrality within the Copyright Act could be used to harm creators. It states that:
Media neutrality means that the Copyright Act should continue to apply in different media, including more technologically advanced ones. But it does not mean that once a work is converted into electronic data anything can then be done with it. The resulting work must still conform to the exigencies of the Copyright Act. Media neutrality is not a license to override the rights of authors – it exists to protect the rights of authors and others as technology evolves.
The "others" here is the public interest and rights of users, but the majority chooses to name only the rights of authors.
The dissent, meanwhile, places the broader public interest considerations at the forefront of its reasoning. It is remarkable that in a case pitting freelancers and publishers, Justice Abella identifies a third interest:
This Court has repeatedly held that the overarching purposes of the Copyright Act are twofold: promoting the public interest in the encouragement and dissemination of artistic and intellectual works, and justly rewarding the creator of the work. Since these purposes are often in opposition to each other, courts 'should strive to maintain an appropriate balance between those two goals.' The public interest is particularly significant in the context of archived newspapers. These materials are a primary resource for teachers, students, writers, reporters, and researchers. It is this interest that hangs in the balance between the competing rights of the two groups of creators in this case, the authors and the publishers. [emphasis added]
Justice Abella continues, citing my Hart House lecture to support the view that:
The Copyright Act was designed to keep pace with technological developments to foster intellectual, artistic and cultural creativity. In applying the Copyright Act to a realm that includes the Internet and the databases at issue in this case, courts face unique challenges, but in confronting them, the public benefits of this digital universe should be kept prominently in view.
As I have stated in the past, this is a court that gets it. While people may differ on the nature of newspapers and databases, it is beyond debate that a solid block within the court has again placed the broader public interest at the very heart of its interpration of the Copyright Act.