Robertson v. Thomson Corp., [2006] 2 S.C.R. 363

This class action was brought by Heather Robertson, a freelance writer who provided two of her articles for publication in the Globe and Mail newspaper. She objected to the fact that these articles were later distributed via Info Globe Online, an internet database of all material published in the paper, and on CD-ROMs containing each day’s edition of the newspaper itself.

The majority of the Supreme Court of Canada found that Globe and Mail could not redistribute articles from freelance contributors via Info Globe Online without compensating the authors and obtaining their consent. The rationale for this decision was that the articles in question were de-contextualized in the online platform, being republished in plane text form without the context of the surrounding articles, advertisements, and other content from the newspaper itself.

In regard to the CD-ROMs, however, the majority found that Thomson was merely republishing the Globe and Mail newspaper as a whole in digital form, and that this did not constitute copyright infringement when authors had consented to their articles appearing in the print version of the newspaper.

Robertson v. Thomson stands for the proposition that when courts evaluate the terms of a contract which licenses content to a publisher, context becomes very important. If an article is republished in the context of the same newspaper, the publisher is within its rights to republish the entire paper in different forms, and using different media. However, the same publisher may not simply lift content out of the paper and republish it in a completely different context without the explicit consent of the author:

“41 We again agree with the Publishers that their right to reproduce a substantial part of the newspaper includes the right to reproduce the newspaper without advertisements, graphs and charts, or in a different layout and using different fonts. But it does not follow that the articles of the newspaper can be decontextualized to the point that they are no longer presented in a manner that maintains their intimate connection with the rest of that newspaper. In Info Globe Online and CPI.Q, articles from a given daily edition of the Globe are stored and presented in a database together with thousands of other articles from different periodicals and different dates. And, these databases are expanding and changing daily as more and more articles are added. These products are more akin to databases of individual articles rather than reproductions of the Globe. Thus, in our view, the originality of the freelance articles is reproduced; the originality of the newspapers is not.”

Decided by the Supreme Court of Canada on October 12, 2006.
Click here for the full text of the decision.

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Filed under Contracts & Copyright, Statutory Interpretation

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