Freelancer Wins Big in Canadian 'Tasini' Case

By: Mark Fitzgerald In a Canadian version of the U.S. Supreme Court's Tasini decision on copyrights, a divided Ontario Appeals Court Thursday declared that The Globe and Mail violated a freelance writer's copyright when it republished her articles online and in electronic databases.

In a 2-1 ruling, the justices affirmed a lower-court ruling that distinguishes between the printed newspaper and an article on a database. Newspapers cannot repurpose freelance work without an agreement from the writer, the appeals court ruled.

"Since I conclude that a database is not a newspaper and that what the Globe reproduced did not have the qualitative aspects of a substantial part of its newspaper, the Globe's cross-appeal on this issue must fail," Appeals Court Justice Karen Weiler wrote, according to an account in Friday's Globe and Mail by John Saunders.

The ruling could affect every Canadian newspaper that has included past freelance work in its online editions. As in the United States, most papers now require freelancers to agree to republishing electronically.

The decision mirrors the U.S. Supreme Court's 2001 decision in New York Times Co. Inc. et al. v. Tasini et al., in which former National Writers Union Executive Director Jonathon Tasini and other freelancers sued the Times and other electronic publishers to gain compensation for articles republished electronically without explicit permission. In a 7-2 ruling, the high court agreed publishers had violated copyright law, and sent the case back to lower courts to decide penalties.

The Canadian case could prove a bigger boon to writers -- and more costly to newspapers. Colby noted that unlike U.S. law, freelancers need not register their work with the government copyright office to pursue compensation in courts.

"It has greater ramifications in terms of the pocketbook" than the Tasini decision, Colby said. "We think it's a wonderful precedent for all of North America. We (in the Unites States) have to rethink the whole notion of copyright, and the burden on American authors to have to register with the Copyright Office to get legal support for their rights."

NWU President Gerard Colby told E&P Friday that a settlement in the U.S. Tasini case is "imminent" but that he was restrained from talking about it by a court order. In the first flush of victory, the NWU had estimated that compensation could range from $2.5 billion to $600 billion.

The Globe and Mail account quoted Publisher Phillip Crawley as saying no decision had been made on whether to appeal.

Freelancer Heather Robertson brought the Canadian case, alleging the Globe and Mail infringed her copyright on articles written in 1995 and included in a CD-ROM, an electronic version of the Canadian Periodical Index, and Info Globe Online.