13 October 2006

Tasini Moves North

The Supreme Court of Canada has, in a 5–4 decision, essentially adopted the rationale of New York Times v. Tasini, 533 U.S. 483 (2001) (PDF), in holding that newspapers (and, presumably, other periodicals and publications) do not have an inherent right to reproduce freelancers' works in online databases. That is, instead, a right that must be transferred by contract.

41.  We again agree with the Publishers that their right to reproduce a substantial part of the newspaper includes the right to reproduce the newspaper without advertisements, graphs and charts, or in a different layout and using different fonts. But it does not follow that the articles of the newspaper can be decontextualized to the point that they are no longer presented in a manner that maintains their intimate connection with the rest of that newspaper. In Info Globe Online and CPI.Q, articles from a given daily edition of the Globe are stored and presented in a database together with thousands of other articles from different periodicals and different dates. And, these databases are expanding and changing daily as more and more articles are added. These products are more akin to databases of individual articles rather than reproductions of the Globe. Thus, in our view, the originality of the freelance articles is reproduced; the originality of the newspapers is not.

42.  The Publishers argue that the connection with the original newspaper is not lost in the databases because the articles in Info Globe Online and CPI.Q contain references to the newspaper they were published in, the date they were published and the page number where the article appeared. We do not share this view. Rather, we agree with the United States Supreme Court's finding in Tasini where the same argument was canvassed and rejected.

Robertson et al. v. Thomson Corp., 2006 SCC 43 (PDF).

Of course, all this means is that the Globe and Mail (and every other Canadian periodical) can follow the example of the NYT (and its affiliates): For every future freelance contract, the freelancer must agree to transfer electronic database rights to the publisher for no fee—with no negotiation—retroactively for everything that freelancer has ever placed in that periodical. This is the famous ability to contract around statutory requirements so beloved of strong-contract theorists. Somehow, though, the practical reasons that individuals agree to adhesive terms never seems to get much consideration when defending those contracts.