In Robertson v. The Thomson Corporation et al., the Ontario Court of Appeal considered the interplay between the copyright of a freelance author in an individual work published with authorization in a newspaper and the separate and distinct copyright in the newspaper as a collective work or compilation. In this action, the Plaintiff alleged that the Defendants infringed the copyright in her literary works by reproducing the works in electronic databases. The Plaintiff had authorized the one-time publication of her works in the Defendants' newspaper, but the agreements were silent on the issue of electronic rights. The electronic databases in issue only included the articles from the newspaper and not its other elements such as advertisements.
In their defence, the Defendants asserted that they owned copyright in the newspaper as a collective work or compilation, and thus they had the exclusive right to copy the work, or a substantial part thereof, in any material form, including in the electronic databases.
The Plaintiff was successful on the motion for summary judgment on the issue of copyright infringement. In a 2:1 split decision, the Ontario Court of Appeal upheld the motions judge's finding that the Defendants had infringed the Plaintiff's copyright as the electronic databases did not constitute a reproduction of the Defendants' collective work. The Court was of the view that the original aspects of the newspaper as a collective work were not preserved in the electronic database.
Accordingly, in Canada, when a collective work or compilation includes other copyrighted works, care must be exercised if an electronic copy of the collective work or compilation is made. It may be advisable to ensure that the original aspects of the collective work or compilation are maintained in the electronic copy, or that appropriate licenses are obtained from the owners of any copyright in the underlying works.
Leave to appeal this decision to the Supreme Court of Canada has been sought, but a decision has not yet been released.