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The Robertson Decision

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.

3 Comments

  1. Russell McOrmond says:

    Congratulations on being cited.
    I believe it should be acknowledged that Michael Geist is cited in this decision.

    “Geist, Michael. Our Own Creative Land: Cultural Monopoly & The Trouble With Copyright. Toronto: Hart House Lecture Committee, 2006.”

    “79 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 Professor Michael Geist observes:

    The Internet and new technologies have unleashed a remarkable array of new creativity, empowering millions of individuals to do more than just consume our culture, instead enabling them to actively and meaningfully participate in it.

    (M. Geist, Our Own Creative Land: Cultural Monopoly & The Trouble With Copyright (2006), at p. 9)”

  2. CopyFight – It’s the principle of the t
    What? The medium IS still considered re the message… not the message is the message? Content is simply not just content is just content? How refreshing, McLuhan must be smiling down.

    The SC has demonstrated intelligence, leadership and jurisprudence. Kudos to Mr. Geist for the very ‘exacting’ citation, but MOSTLY flowing accolades to Heather herself, for her Artistic fortitude in sticking this one out for ten LONG years!!

    A good for copyright in Canada day!

  3. Public Interest Served says:

    I would have thought that the amorphous ‘public interest’ was served by the majority in its refusal to permit several individual Canadian writers’ copyrights to be ignored by a handful of publishers. Given the demonstrable increase in consolidation of media corporations world-wide, the demonstrable meager income of the average Canadian freelancer and the demonstrable contractual power imbalance between most Canadian freelance writers and their corporate publishers, it seems to me that the public stands to benefit by having our highest court and ‘others’ foster respect for the copyrights of Canadian authors and other self-employed creators — that is, if we agree that there is a strong public interest in works being created by individuals free of public or private patronage. The minority’s curious choice to feed the fashionable, yet unsubstantiated, theory that the average Canadian’s access to copyright-protected works (digital or otherwise) stands to be threatened in the future is altogether unhelpful. Canadian authors certainly don’t and won’t stand in the way of access. Does the minority block remarkably choosing to call corporate publishers ‘creators’ indicate that they get it? Canada’s creators deserve better. Thank goodness the minority’s opinion was just that — a minority one.