Archive for the ‘Reports’ Category

Seasons’ greetings to all ERDC stalwarts!

The case goes on. As you may already know, our legal team is now larger. Our long-time lawyer Me Mireille Goulet will be working in collaboration with the firm of Sylvestre, Fafard, Painchaud, class action specialists. We hope to have some more news early in the new year.

In the meantime, our best wishes for a 2010 which will be at least as good, if not better, than 2009.

Jack Ruttan, ERDC Secretary

Mary Soderstom, ERDC Chair

It was a three-in-one deal Wednesday March 25, 2009, as the Electronic Rights Defence Committee (ERDC) met for its annual general meeting, and the ERDC executive held two short meetings the same night. The first was to approve minutes of a previous Executive meeting and then attention turned to the annual general meeting agenda.

The AGM consisted mostly of updates on our case—our lawyer Mireille Goulet reported that we may get a decision on our class authorization by the end of April—and other cases similar to ours. The parties involved in Heather Robertson’s case against the Thomson chain were currently in discussions, while her case against ProQuest, CEDROM, Torstar, CanWest and Rogers has been certified by mutual consent. The Association des journalistes independents du Québec (AJIQ) is scheduled to have a hearing on its own class action authorization next week: its adversaries are French language newspapers, with the exception of the Le Devoir with which it settled several years ago.

Elections were held for the ERDC executive committee, with all members being re-elected: Mary Soderstrom, president; Jack Ruttan, secretary; Ron Diamond, treasurer; and executive members at large Tracey Arial, Ann Charney, Anne Diamond, Julie Gedeon, Peter McFarlane, Stuart Robertson, and Merrily Weisbord. The new executive approved a resolution agreeing to a contract with Me Goulet as required by the Fonds d’aide aux recours collectif (FARC), the provincial body which has provided on-going financial support since the beginning of our class action. The terms are the same as in previous contracts.

We’ll keep you updated when there are any new developments.

Jack Ruttan, ERDC Secretary

Mary Soderstrom, ERDC Chair

Dear Electronic Rights Defense Committee (ERDC) members and supporters:

Our lawyer Mireille Goulet has “Good news! Great news!”

You might remember from last February that our hearing on continued financial aid from the Fonds d’aide aux recours collectifs, (FARC, the body funding class actions in Quebec) was cancelled at the last minute. We have been without news on this front –or new funds– since then. But last Monday, Mireille learned that FARC has a new President, and will begin holding hearings again, most likely at the end of August or September 2008 (although there is a slight possibility for the end of July).

Mireille says she was told by FARC staff that the ERDC is “amongst the first in line, so we will be heard amongst the first.” This means we may still have to undertake some fundraising, but Mireille suggests we wait until fall because summer is not good for fundraising. It should be noted, though, that the Writers’ Union of Canada approved $1,500 for the ERDC and the cheque should be arriving soon.

As for news on our hearing on class action authorization, there is none so far, but that is to be expected. Mireille says: “The judge has taken the case under advisement and has a period of about 6 months to render the decision.” She says the decision will be faxed to her, “probably around October.”

“Once we get the decision, there are 2 possibilities. Either we win and then we prepare and start a ‘new ‘ round of legal proceedings. If we win, the Defendants publishers have no right to appeal the decision, ” Mireille says. “If we lose, either partially or completely, we will have to consider an appeal of the decision.”

So, things are ‘to be continued.’ In the meantime, Mirielle closes by saying: “Last but not least, I do wish all of you a great summer and great Holidays. Enjoy!”

Same thing from Jack and Mary.

Jack Ruttan, ERDC Secretary

Mary Soderstrom, ERDC President

The Electronic Rights Defence Committee (ERDC) held its 2008 Annual General Meeting Wednesday, March 26 at the Atwater Library Reading Room. Present were most of our executive, some new faces, as well as some who have been active in the past, but who have been busy recently. Our positive mood was fueled by the recent strong performance of Me. Mirielle Goulet at the hearings before the Superior Court of Montreal on our request for class action authorization, February 25, 26 and 27 of this year.

Me. Goulet’s legal report was the centerpiece of the meeting. She summarized her presentation at the hearings as well as that of the defendants. Those who had attended the hearings commented on the David and Goliath nature of the combat: where Me. Goulet acted by herself, the others had five attorneys present in court at all times. And, as Mireille noted, “we have our own David,” – class action representative David Homel. She would expect that the judge who heard the proceedings, the Honourable Justice Eva Petras, will render her decision within 6 months, which means it could be early fall before we have news.

Next order of business, President Mary Soderstrom’s report from the Chair. Basically she spoke about the need to provide some interim compensation for Me. Goulet, who has been working in practical terms without fee since 2003. We are exploring possible avenues, and will have more on this issue in future messages.

Next on the agenda: election of officers. President Mary Soderstrom, Secretary Jack Ruttan, and Treasurer Ron Diamond are sticking around, as are Executive Members at Large Merrily Weisbord, Ann Charney, plus Peter McFarlane and Stuart Robertson, who were not present, but had previously given notice of their assent. As well, Tracey Arial and Julia Gedeon have agreed to join the executive as Members at Large, while Anne Diamond has offered to work setting up a Facebook page. The meeting also passed motions of thanks to David Homel and Mary Soderstrom for their work.

So plenty has happened. We’re going to rely more on teleconferencing in the future, because meeting face to face is difficult with busy schedules. If the case is authorized, there’s a lot of work ahead, but the committee feels energized and ready to take on the challenge.

Jack Ruttan, ERDC Secretary
and
Mary Soderstrom, ERDC President

Me. Mirielle Goulet made her point on the final day of the Electronic Rights Defence Committee’s class action authorization hearing.

The opposition, drawn from three different high-profile law firms, finished their rebuttal to her presentation. She gave a rebuttal to them, and then they had a chance to answer her rebuttal.

Much appreciation is due to the freelance writers who took time out of their schedules to show up at the hearing and support Me. Goulet’s efforts. Especially David Homel, who was there much of the time. Unlike the lawyers on the other side, none of us were being paid to be there.

Now the case goes under advisement, and we can do nothing but wait for Judge Eva Petras’ decision as to whether the class action goes ahead. We’ll let you know at the earliest possible opportunity. As Judge Petras said, summing up, “it’s not quite so easy.”

Dear Friends

The ERDC is still struggling away, although at the beginning of the summer we had hoped that we might have some good news about a settlement by this time.  Sadly, we don’t.

As you probably remember, in early spring our lawyer Me. Mireille Goulet met twice with lawyers for the defendants (revised list: Montreal Gazette Group, CanWest Global Communications, Hollinger Canadian Publishing Holdings, CanWest Interactive, Southam and Southam Business Communications, Infomart Dialog and Cedrom-SNI) to discuss the possibility of a settlement to our class action. The proposal asked for $25 million to be shared among several subclasses as well as contracts with fair compensation for electronic rights and explicit recognition that copyright remains with freelance writers.

In mid-July we received a reply from Me. Malcolm McLeod on behalf of the defendants, which offered $100,000. This was disappointing, to say the least, but the ERDC executive carefully considered its response. After a conference call in August, the executive agreed that Me Goulet should reply by politely rejecting the “offer” but saying that we are open to discussion in the future when the other side is ready to present a “reasonable” settlement.

In parallel with this, since early spring Me Goulet has been working toward getting a Court date for the authorization of the class action: all parties must agree on the date and doing this is not an easy matter. We are now waiting for the Court to set up the three days of hearings. The earliest dates possible seem to be in February, 2008. We’ll let you know when we have received them from the Court.

Best wishes

Mary Soderstrom, Chair
Jack Ruttan, secretary

Greetings, Electronic Rights Defence Committee (ERDC) members and supporters.

A group of ERDC stalwarts heard the latest news about our case against Southam, the Montreal Gazette and their legal successors at the ERDC Annual General Meeting Wednesday March 23, 2005. Then we all relaxed over wine and good things to eat in Merrily Weisbord’s pleasant dining room.

The news of the last year is:

• David Homel has been officially accepted as class representative in the case against The Montreal Gazette, Southam and its legal successors, replacing David Fennario, who had to bow out due to ill health.
• Lawyers for the defendants have extensively cross examined David Homel.The case has been enlarged to include the corporations which are the legal successors to Southam, so we are now petitioning Southam Inc, CEDROM-SNI Inc, Infomart Dialog Ltd., Southam Business Communications Inc., Montreal Gazette Group Inc., Canwest Global Communications Corporation, Hollinger Canadian Publishing Holdings Inc. and Canwest Interactive Inc. To do this has required some delays in court proceedings, but the ERDC executive committee decided the delay was worth it. To win a case against Southam, which is not much more than a legal fiction after several industry sales and mergers, would be a hollow victory.
• The stage is being set for a hearing on the admissibility of the action. We expect the date for it to be set this spring . At the hearing we will invite a large delegation of writers to be present in court, in order to show our solidarity with David Homel.
• But Quebec’s Fonds d’Aide aux recours collectifs (FARC) which assists class action law suits in the province, has said it will provide no more funding for our case until a date is set for the hearing on authorization. That means we can expect no more financial help from them until next fall. Therefore, because we will need several thousand dollars for various disbursements in the next few months, we have launched a fundraising campaign.

You’ll find attached the documents we sent out as part of this campaign. Please help us out with a financial donation by sending your cheque to:

The Electronic Rights Defence Committee,
c/o Ron Diamond, Treasurer
995 Wellington #238
Montreal, QC H3C 1V3

And finally the ERDC executive was re-elected: Mary Soderstrom, president; Ron Diamond, treasurer; Jack Ruttan, secretary; and Ann Charney, Merrily Weisbord, and Stuart Robertson, members-at-large.

Jack Ruttan, ERDC Secretary, for
Mary Soderstrom, ERDC Chair

Dear Electronic-Rights Defence Committee (ERDC) members and supporters,

There’s good news and progress on the electronic rights front. The Heather Robertson case against the Thomson Group appears to have passed a major hurdle: see October 7 story from the Globe and Mail at bottom.

But first, here is an update on the class action in Montreal from our Legal Counsel, Maitre Mirelle Goulet:

Hello all!

I went to Court for the ERDC September 21, 2004, and here is the news.

The defendants have appeared. Me Mark Bantey of Gowling Lafleur will be representing the 3 new defendants and Me Robert Charlton will be representing Hollinger. They appeared late as of September 7, 2004.

So I prepared a motion for special case management before the Associate Chief Justice and I got the date of Septmber 21. On the 21st, the Associate Chief Justice decided to have counsel negotiate a timetable for further examinations by the new defendants.

We have a timetable that runs till December 2005 – yes over one year – and I still have to forward it to counsel for defendants Cedrom-SNI for their approval, because they were not present.

So the examination of David Homel is for 3 full days: November 8, 9, & 10, 2004, and preparation has continued since September up until those dates.

Take care, Mireille

…And news from the Heather Robertson case:

Court rules against Globe in copyright case

Denies right to republish articles bought from freelancers in searchable databases

By JOHN SAUNDERS

The Ontario Court of Appeal has ruled that The Globe and Mail does not have the right to republish articles bought from freelance writers in searchable electronic news databases because the articles then are no longer part of the newspaper.

In a 2-1 split decision yesterday, an appeal panel upheld a 2001 Ontario Superior Court decision that may handicap publishers whose electronic archives have become substantial profit sources.

In the lower-court decision, Mr. Justice Peter Cumming wrote that virtually all of the arrangement and selection that goes into a newspaper “is lost in the reproduction of an isolated, stand-alone article downloaded onto a computer, and shown on its monitor, from an electronic database as the result of a keyword search.”

The appeal ruling, written by Madam Justice Karen Weiler on behalf of herself and Madam Justice Eileen Gillese, agreed that The Globe appears to have infringed the copyright that freelance writer Heather Robertson retained in articles originally published in 1995.

“Since I conclude that a database is not a newspaper and that what The Globe reproduced did not have the qualitative aspects of a substantial part of its newspaper, The Globe’s cross-appeal on this issue must fail,” the judge said.

She said The Globe’s freelance purchase agreement with Ms. Robertson did not convey ownership of copyright and that any such transfer would have had to be in writing.

The ruling deals with points settled in the preliminary stages of a case that may go to trial to decide others. Globe publisher Phillip Crawley said the newspaper’s lawyers are studying it and no decision has been made on whether to seek leave to appeal to the Supreme Court of Canada.

The panel rejected a separate plea by Ms. Robertson for legal standing to seek an order preventing The Globe from putting staff-written stories in its databases.

In a dissenting opinion, Mr. Justice Robert Blair rejected the idea that electronic databases lack the collective copyright of newspapers on which they are based. “They consist of a collection of archived materials, stored in electronic format, just as a traditional library consists of a collection of books, newspapers, journals, periodicals and a plethora of printed materials. No one suggests, however, that a library must be a newspaper before the copyright of a newspaper publisher in the newspapers found in the library is protected.”

Bell Globemedia
© 2004 Bell Globemedia Publishing Inc. All Rights Reserved.

We will keep you up to date as things progress.

Jack Ruttan, Secretary, and
Mary Soderstrom, Chair, for the ERDC.
Any questions, comments, new e-mail addresses? Please contact Jack Ruttan, ERDC Secretary.

Dear ERDC (Electronic-Rights Defense Committee) member,

Here is an update on the progress of our class action over the summer, courtesy of our legal representative Maitre Mireille Goulet:
Good news! On August 3, 2004, I made representations and arguments to the Court to request that our motion be amended to add 4 new defendants, mainly legal corporate successors of Southam. This motion was vigourously contested by Me Robert Charlton, Southam’s lawyers, for several hours. Of course I did have an answer for their arguments. I even made an additional request verbally to the Court to try to speed up our proceedings if the 4 new defendants are
added.

This request is left to the discretion of the Court, so the chances of us getting it in our favor were slim. However, the Court did not agree with Southam’s arguments, and rendered its decision to grant our motion as requested. Not only did we win this motion, the Court also granted my verbal request and created a special procedure for us to try to speed up the process after the 4 new defendants appear.

So, I have already served the motion on the new defendants and await their appearances. Then, in mid-September we can request the
special procedure to speed up the process. This involves a special
request to the Chief Justice, who will decide how many more proceedings and steps will be allowed, mainly for the defendants.

I’ll keep you posted.
Mireille

Thanks, Mireille, and keep fighting the good fight!

Jack Ruttan, Secretary, for the ERDC

Dear Electronic-Rights Defence Committee (ERDC) Member,

Progress is ever continuing in our case against Southam. Our most recent step has been to add four more companies to our suit, who are legally responsible for Southam’s debts and misdeeds.

Our lawyer Maitre Mireille Goulet has made a lengthy search for the many companies linked to Southam and The Gazette as its corporate legal successors. When that was done, she prepared and served on Southam a motion to request permission from the Court to include the 4 new companies as Respondents-Defendants.

On Tuesday, June 15, 2004, ERDC Class Action Representative David Homel will be cross-examined by Southam concerning this motion. Friday, June 18 the Court is supposed to hear the motion to re-amend. However, Me. Goulet says that postponements are likely from Southam.

This means our timeline will be something like the following:

• Decision by the Court to allow new defendants
• Serving proceedings on new defendants
• Appearance and contestations, if any, from new defendants
• Possible further cross-examinations of David Homel

This would probably put dates for the hearing on the authorization of the class action -a process taking 3 days or more- in late Fall 2004 or Spring 2005, depending on the responses of the new defendants.

We had hoped that things would move along more quickly, but the Executive decided it was important to make sure that all the corporations involved be included in the case. It would be a shame to win against Southam, only to learn that it was merely a shell with no money to pay damages.

You’ll be hearing more from us later.

Jack Ruttan, ERDC Secretary
Mary Soderstrom, ERDC Chair