Newspapers and magazines do not have the right to republish articles written by freelancers in electronic databases without the consent of the authors, according to a Supreme Court of Canada ruling released Thursday.

The long-running case revolves around Canadian freelance writer Heather Robertson and two articles she submitted to the Globe and Mail in 1995.

After having published the two pieces in its print edition, the Globe then included them in three electronic databases: Info Globe Online, the electronic version of the Canadian Periodical Index (CPI.Q) and a CD-ROM that comprises a year's worth of several Canadian newspapers.

Lawsuit filed in 1996

Robertson, a Manitoba-born, Ontario-based writer and founding member of the Professional Writers Association of Canada, filed a class-action lawsuit against the Globe and Thomson Corp. in 1996 for unauthorized reproduction of her work and the work of thousands of other freelance writers.

The Ontario Superior Court ruled in favour of Robertson in 2001 and, three years later, the Ontario Court of Appeal upheld that original decision.

Vast electronic databases like Info Globe Online and CPI.Q are completely different than the "collective work" of a newspaper, the judges wrote in their ruling.

"The transfer of articles from their newspaper format and environment to Info Globe Online and CPI.Q, unlike the conversion to microfilm or microfiche, is no mere conversion of the newspaper from the print realm to the electronic world," they wrote.

"The result is a different product that infringes the copyrights of freelance authors whose works appear in those databases."

Despite that overall decision, the Supreme Court did make an allowance for the CD-ROMs, which the judges felt could include freelance articles because they "preserve the linkage to the original daily newspaper."

"We believe the CD-ROMs are a valid exercise of the Globe's right to reproduce its collective work. The CD-ROMs can be viewed as collections of daily newspapers in a way that Info Globe Online and CPI.Q cannot."

Similarities to U.S. case

In their ruling, the judges referred to a similar case in the U.S. In 2001, in the case New York Times Co. v. Tasini, the U.S. Supreme Court ruled in favour of members of the National Writers Union and against the New York Times, Newsday Inc., Time Inc., University Microfilms and LexisNexis.

The U.S. plaintiffs won a multimillion-dollar compensation package after the court ruled the newspaper and periodical publishers had infringed the writers' copyright by submitting work to electronic databases without having gained the permission of the original authors. The settlement was estimated to be as high as $18 million US.

Both the U.S. and Canadian cases helped freelance writers push for further recognition of their rights in new electronic formats and for compensation from publishers for further uses of their work in new media. 

Despite the ruling, Robertson must now return to court for a trial on whether her agreement to write for the newspaper gave implied consent to the electronic use of her material.

With files from the Canadian Press.