Thursday, October 12, 2006

Robertson v. Thompson Corp. -- Thumbs Down

Today, the Supremes split 5-4 on whether a newspaper publisher can make freelance articles available on a searchable database without obtaining a license from the writer. The majority, like that of the Supreme Court of the United States in Tasini v. New York Times, said "no," except for CD-ROMs. The dissenters said "yes."

There is no doubt that the dissenters end up with the more sensible policy result. Newspaper publishers are not going to pay freelancers money to exhibit their ancient articles. So the result will just be that they won't be available. No one benefits, and when no one benefits from something, it is usually a bad idea. This is particularly clear in Canada, since we have the experience of the SCOTUS's Tasini decision to tell us what basic economics would have predicted.

The legal argument comes down to the question of whether putting articles in a database is republishing the articles (which only the author has a right to do) or republishing the newspaper (which the publisher has a right to do). The overriding principle (but one that points both ways) is "media neutrality" - if you own copyright in one medium, you own it in all.

The majority thinks that a searchable database of articles is not the same as a newspaper, because the articles are "decontextualized" and therefore lose the originality involved in turning individual articles into a newspaper, the original effort of the publisher that copyright protects. I don't buy this, since I would think that the acts of selecting articles and editing them would still be present.

Staff articles will still be found, since the publishers automatically own them by virtue of the employment relationship.

Case Comment of Robertson v. Thompson Corporation, 2006 SCC 43

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