New tools for new paradigm - Robertson v. Thompson Corp.

I’m going to show you how to be a millionaire. First, draw a line on a piece of paper.

Great. You have just created a one-dimensional world. In this world, people can only move linearly since there are no ‘sides.’ So, they can’t see you even when you are next to them. Now add three more lines to form a square.

Well done! Now you have a two-dimensional world. The inhabitants can now look around as there are two dimensions – forward, backward, and sides. But still, no ups and downs. People in this world would not be able to imagine a sky over their head. Now, imagine what a bank safe would look like in this world.

A safe in this dimension would have walls but no roof or floor. Despite this deficiency, it is a perfect safe to the inhabitants of this world because they can’t imagine ‘up’. However, as inhabitants of a three dimensional world, you can easily take the money out of the safe, simply by reaching in. To the dwellers in this dimension, however, this would seem like a preposterous idea. Let’s say that I stole this money. Surprised by the disappearance of money, people in the two-dimensional world decided to take every possible measure to protect the safe. How does it look like?

You may add many more walls, but still no roof. We just have to reach in to get the money, just as we did before. You can be a millionaire! None of the protective measures of this world can protect the safe from you.

In Robertson v. Thomson Corp., the Supreme Court of Canada made huge efforts to define terms that are central to the copyright law such as originality, collective work, substantial part, media neutrality, reproduction and so on. After a lengthy discussion, the Court concluded that: “in order to remain within their right of reproduction, the publishers must enter the entirety of each newspaper into the database …… rather than permitting each article to be viewed separately.” Would this determination put an end to similar disputes? Imagine a newspaper publisher who stores his/her newspaper by article, torn out from a paper—rather than storing it as part of a complete newspaper—catalogued in an alphabetical order by topic without any reference to the date of publishing, etc. Would this be an infringement of the right of the freelancers? According to the majority in Robertson, it would be. But would the freelancers complain about it? I don’t think so. If the publisher had used the CD-ROM in question purely for storage purposes, the authors probably would not have brought a claim. In my opinion, the key issue in Robertson is the change of relationships between the freelancers and the publishers by the advent of new media. New media include internet portals and commercial database companies who deliver information to consumers. There are three ways for new media to acquire information: First, they can produce articles themselves. Second, they can purchase it directly from the author, either the freelancers or the publishers. Lastly, they can purchase any information from the publisher. Market economy has taken the third option. It is cheaper, faster, and more convenient. Now, the publishers and the freelancers are competitors. Current copyright law has not recognized the competitive relationship between the publisher and the freelancer. It is not equipped with relevant tools, therefore, it cannot provide a reasonable solution to the issues rising from the new relationship. In Robertson, the Court’s attempt at a solution is parallel to trying to protect the safe from the three dimensional world using two dimensional tools. It simply doesn’t work. It is time for the Parliament to intervene. There would be many ways to solve this problem, but the direction that the Parliament should take is to get rid of the competition between the freelancer and the publisher, restoring the relationship back to cooperation. For example, a new law could forbid assignment of any copyright for 60 days from the date of publication, allowing the freelancer to earn as much money as they can without competition within the time frame. It is like pushing me into the two-dimensional world. I won’t be able to get the money out of safe while I’m locked in the two-dimensional world. But for the time being, the court in dealing with similar problems should utilize the law to best reflect the change of relationship rather than trying to figure out the exact interpretation of each word.

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  1. The utility of the medium itself affects the form and function of the copyrighted material. If the average individual approached reading a newspaper as a research task, and not simply for pleasure, one might agree with the dissent in Robertson that articles archived in an electronic database is not that different from articles scattered in a daily newspaper or a monthly magazine. Vice versa, if subscribers to online databases used these electronic mediums to read whole newspapers for leisure and not to simply extract individual articles for research – wouldn’t the essence of the collective work be maintained? In my view, when upholding the Copyright Act’s stance on media neutrality, the concern over publishers infringing the ownership rights of authors is a non-issue. I do agree with Khshin, in that, the real issue – or the elephant in the room, which was not mentioned by the Canadian courts – was money. Considering the current climate and the grossly unequal balance of bargaining power facing freelance authors, it is clear that the Copyright Act is not adequately protecting the interests of the original creators. With the pervasiveness of contracts, giving an author more rights under the Act is futile when those rights can be signed away to the publishers for pennies. The purpose of the Act is to protect the public interest and to justly reward the creator of the work. With legislative clarity, these two purposes should not have to exist in a sustained dichotomy.

  2. Legislating cooperation will not erase competition between publisher and freelancer. Like a living organism, if confined the market and competition evolve (and not necessarily in favour of the freelancer). Threatened by the limitless creative potential of the author, the publisher must expropriate works to survive. The size of the free market provides a limitless source of freelancers craving revenue and exposure. The publisher has a monopoly on this exposure that cannot be matched. Equal bargaining power is perhaps available through (1) threatening to stop creativity, or (2) continuous pressure through a collective effort. These, however, require an organizational business savvy that is less the domain of the freelancer and more that of the publisher. Herein lays a problem. Are most freelancers genuinely willing to take up their sword and join forces to pressure publishers if none were even willing to spend a day on the Supreme Court lawn supporting Robertson? Tighter legislation risks reactive evolution: tighter manipulative contracts, underground freelancers willing to compromise to get preference, loss of work, and vitriolic control by publishers over already-unstable relationships, all worsening the balance of power. If authors had a 60 day grace period, how many would capitalize on it? Would this be another empty Supreme Court lawn? Would it be a just reward for the costs of such legislation? Can any Act adequately protect the interests of the author without paradoxically adding insult to injury? This is indeed a multi-dimensional conundrum, which the Court might know is not presently solvable.

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