Calgary – 13:26 MST – “Newspaper publishers are not entitled to republish freelance articles acquired for publication in their newspapers in [databases] without compensating the authors and obtaining their consent.”

Today the Supreme Court of Canada (SCC) released its decision in Robertson v. Thomson Corp., 2006 SCC 43 [link], the copyright battle pitting freelance writer Heather Robertson against the Globe and Mail publishers. The decision came out in favour of Robertson.  The majority of the court decided that the publisher’s right to copy and reproduce the freelance articles was restricted to the specific layout or the “essence” of the newspaper. Republishing the articles in a database or other form which did not preserve the “essence” of the newspaper was not part of the publisher’s copyright.  For such a reproduction, the author’s consent was required.  However, the publisher was permitted to reproduce the artlcles in a CD-ROM which preserved the essence of the newspaper. We’re still reviewing this decision, but judging by the split in the Court’s analysis, it looks like the copyright debate is continuing.

The impact on business? Just because you think you own the copyright in a particular work, don’t assume that right includes the right to reproduce the work in any and all media.  As a result of the Tasini decision (a decision on comparable facts in the US), we have been advising clients to include contractual language to clarify the rights of reproduction to include any and all media.  This Canadian decision reinforces that advice.