Canadian and US Courts have recently permitted class actions on behalf of authors to become certified and proceed against major publishers for copyright infringement where such authors’ work is made available by the publisher in other than the normal hard copy print format (in electronic format, for example), a development that is forcing major publishers to be more careful to secure additional rights from authors (and possibly forcing publishers to pay authors an increased price for works published).
In the recent Ontario case of Robertson v. Thompson Corp., a class action for copyright was filed against Thompson Corp., owner of the Globe & Mail newspaper, in respect of a class of independent authors who had submitted works for reproduction in the print edition of the Globe & Mail, and whose works were subsequently made available by the defendants in electronic format. According to the authors, publication in electronic format was not a right granted from the authors to the defendants. The defendants asserted a "collective work" copyright interest in their print publications which they claimed allowed them to publish the "collection" of works in any format, including electronic format. The defendants proposed a "contractual norm" or an industry practice existed whereby once an article is submitted for publication in print form, it is implied that the "collective work" copyright is conveyed.
Mr. Justice Sharpe of the Ontario Court certified the action noting that the proposed classes of plaintiffs were identifiable and had an issue in common.
Doak Horne is a partner in the Toronto Gowlings office. He can be reached by e-mail at firstname.lastname@example.org.
Andrea Rush is a partner in the Toronto Gowlings office. She can be reached by e-mail at email@example.com.
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