In Robertson v. Thomson Corp., 2006 SCC 43, the Supreme Court of Canada, in a 5-4 majority decision, has determined that newspaper publishers are not necessarily legally entitled to republish in electronic databases freelance articles acquired for publication in the original newspapers. Specifically, the Court held that when viewed globally, the Info Globe Online and CPI.Q electronic databases are sufficiently "decontextualized" from the original newspapers to be more properly recognized as independent collective works. However, the Court also held that the republishing of freelance articles in certain CD-ROMS was permissible, as the CD-ROM reproductions effectively preserved the essence of the original newspaper.
In this case, Heather Robertson, a freelance author, had written two articles that were published in the The Globe and Mail (Globe). Copyright was not addressed with respect to either article. Ms. Robertson objected to the presence of her articles in three databases: Info Globe Online, CPI.Q (the electronic version of the Canadian Periodical Index), and the CD-ROMs (containing the Globe and several other Canadian newspapers).
In Info Globe Online and CPI.Q, articles from a given daily edition of the Globe are stored and presented in a database, which also contains thousands of additional articles from various other publications. The question considered by the Court was whether these electronic databases were in fact reproducing the newspapers or were instead merely reproducing Ms. Robertson's articles. The Court decided that these two databases did not reproduce the Globe, or a substantial part of the Globe, in such a way that the editorial content of the newspaper was preserved and presented in the context of that newspaper. Instead, the articles were decontextualized to the extent that their connection with the rest of the newspaper was lost. As a result, these databases were "more akin to databases of individual articles rather than reproductions of the Globe." The Court did not accept the publishers' argument that the articles in these databases maintained their connection with the newspaper through inclusion of the publication date and page number from the Globe. Such information was considered merely historical information.
In contrast, the Court held that reproduction by the publishers in the CD-ROMs fell within the publishers' rights to reproduce their collective works (or a substantial part thereof) under the Copyright Act. Unlike Info Globe Online and CPI.Q, the CD-ROMs maintained the essence of originality of the newspaper – its editorial content – in that users were able to view the Globe as a single day's edition.
This case highlights the layered nature of protection afforded under the Copyright Act, and demonstrates that the rights of those entitled to copyright protection are not always complementary. Indeed, this case brings to the fore the competing rights of freelance authors and their publishers.