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ERDC October 2004 Progress Report

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


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.

ERDC September 2004 Progress Report

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

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.

Thanks, Mireille, and keep fighting the good fight!

Jack Ruttan, Secretary, for the ERDC

ERDC June 2004 Progress Report

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

ERDC May 2004 Progress Report

Dear ERDC Members,

This is an eventful time for the Electronic Rights Defence Committee (ERDC), and its lawsuit on behalf of freelancers against the publishers and owners of the Montreal Gazette.

First, we can say that a good deal of progress in the courts (the interrogation of our Class Representative David Homel) was accomplished in February of this year. This was covered in the last Progress Report, which can be found with all the others in the archives of messages to the membership on the ERDC website,

Now, according to our legal counsel Maitre Mireille Goulet, there will probably be a pause until early fall, when the next important hurdle will come up: the hearing on authorization of the case.

At that time, we will approach any and all interested ERDC members to attend the three-day-long hearing and show support for the case. Once the case is authorized, and if the defendants do not ask for and receive delays, we might have a judgement by this time next year.

Report on the Meeting

The ERDC Annual General Meeting of the night of Wednesday, March 24, 2004 at the Atwater Library in Montreal was well-attended. The meeting lasted two hours, taking place in the very room where the first ERDC meeting was held and the group formed. There were six of our executive present, plus David Homel and Me Goulet and several former members of the executive. It was good to see these familiar faces again.

Executive Reports

Financially, thanks to the encouraging response to last year’s fundraising efforts, we are not badly off, but further contributions are always welcome.

We will be making a concerted effort to communicate the story of the ERDC and its class action to other writers’ organisations via e-mail, and when possible, personal presentations.

Legal Report

Delivered by Me Goulet, this is normally entered in the minutes as “(Deleted).” We can only make our legal strategy public information after it has been accomplished.

However, on February 25, 2004, we received the amended contestation by Southam et al. The first contestation was received back in June, 1997 when we first put forth our case. This is the 25-page amended contestation, and is a public document.

Please note that we do not agree with its contentions. Indeed, we have been fighting our case over it, and winning nearly every step of the way.

In general, the new document is the same as the 1997 contestation, but some material has been added, notably to do with the many structural corporate reorganizations, mergers and acquisitions by, and of, Southam Inc.

However, paragraph 170 of the amended contestation charges that the ERDC’s motion is:

“…a thinly veiled and inappropriate attempt, financed by the Québec government, against Respondents, and The Gazette in particular, by a small and identifiable band of freelance writers who are not representative of anyone except themselves, to obtain better financial terms for the future, through a smokescreen of vague, ill-informed and inaccurate allegations and outrageous and ridiculous monetary and other conclusions.”

In truth, these are just their old arguments in writing. They can’t come up with new ones. All of this is to be expected, and we are ready for them. We still feel our case is strong, and that we have a good basis in law to have the lawsuit authorised.

We are considering our response, if any, to the contestation. We are making appropriate investigations, and considering our response to the amended contestation. We will keep you posted.

There will be another general meeting around the same time next year, and in the meantime, we will periodically hold executive meetings. These will be “open” meetings, meaning any member who wishes to can attend, and see even more of the inner workings of the ERDC than I can give you in e-mail! I will notify the membership when these are scheduled, of course.


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

ERDC February 2004 Report

Greetings, Electronic Rights Defence Committee (ERDC) members,

The ERDC open executive meeting of Wednesday, Feb 4, 2004 at the Lys de
Szechuan was energizing, with eight members in attendance. We heard reports of the last few months of action and are gearing up for the next period of activity, which will be busy and unfolds as follows:

The cross-examination of ERDC class representative David Homel wrapped up on Jan 14, 2004. We went to court again on Feb. 5, and the amended contestation of Southam et al (if any) is expected for February 20th. Back in court on February 26 for some representations as to procedure, and we will probably get a court date set for the 3-day hearing on the next step, authorization of our lawsuit.

The time and date for the ERDC Annual General Meeting has been set:

It will be at 7:30 p.m. Wednesday, March 24 2004, in Room 4, Atwater
Library, (upstairs) 1200 Atwater, (Atwater Metro), Montreal.

Members are bringing some wine and nibbles, so there’s an added

I will send out another, more formal announcement, in a week’s time.

Meantime, if there are any messages from ERDC members about activities
across the country: book launchings, signings, tours, etc. please forward
them to me, Jack Ruttan, and I would be happy to send them out to the
membership, and post them on the news section of our website,

Jack Ruttan, ERDC Secretary.

ERDC (Electronic Rights Defence Committee) update

The Electronic Rights Defence Committee (ERDC) Works Over
the Summer

This summer ERDC lawyer Mireille Goulet and our class representative designate David Homel spent several days preparing for Homel’s examination by lawyers for the Gazette, Southam and their legal heirs. Homel had one day of questioning in August, and is scheduled for another October 9. Then on October 16 a judge will hear our formal request to replace David Fennario (who had to withdraw from the case for health reasons) with David Homel as class representative in the ERDC’s class action against the appropriation of electronic rights without compensation or consent.

Me Goulet will also ask the Court on October 16 for a timetable setting the steps to be completed before the hearing on the authorization, such as more examinations and amendments. She has already been in court June 27, September 3, and September 23 on matters dealing with the case, which is progressing well through the necessary procedural steps, she says.

We’ll keep you posted on what happens.

Mary Soderstrom, Chair,
and Jack Ruttan, Secretary,
for the ERDC.

Electronic Rights Defence Committee (ERDC) Update

Subject: Electronic Rights Defence Committee (ERDC) Update
Date: Wed, 9 Jul 2003 11:45:47 -0400

Dear ERDC Friend and Supporter,

It’s six years and counting but it looks like the Electronic Rights Defence Committee (ERDC) is moving full steam ahead in its $33.3 million class action lawsuit against Southam Inc., CEDROM-SNJI, Infomart-Dialog and Southam Business Communications and their legal successors. At issue are 37,000 articles infringing on the copyright of freelancers’ work dating back to 1985, as well as a legal precedent establishing creators’ rights to their own work.

The case was launched April 7, 1997, and on June 27, 2003 our lawyer Mireille Goulet turned back a move by the Southam group lawyers aimed at disallowing the case and the acceptance of David Homel as our representative. The noted novelist, translator and journalist has agreed to replace playwright David Fennario as the representative because Fennario is still battling Guillain-Barré syndrome. Homel will probably be examined by lawyers for Southam and its legal successors during the summer. Right after Labour Day Maître Goulet will be back in court to request a revised time schedule, formal approval of David Homel as the class representative, and petitioning to move the case forward.

And there is other good news:

  • In April, 2003 the Fonds d’aide aux recours collectifs (the Quebec agency which provides money for legal fees in class action cases) approved more funding to cover additional legal costs incurred because of the need to change class representatives.
  • ERDC friends responded warmly to our plea in March for financial help to cover non-legal expenses, including preparation, research and representation. Many small contributions were received from individuals who believe in the case as well as $1,500 from the Newspaper Guild of Canada and $1,000 from the Writers’ Union of Canada.Many thanks to everyone who responded, but the need for support continues as the struggle goes on. If you’d like to help, please make cheques payable to
    The Electronic Rights Defence Committee, and send them to
    The ERDC c/o Ron Diamond, Treasurer
    995 Wellington #238
    Montreal, QC H3C 1V3

    Unfortunately , as we are not a charitable organization, we cannot give receipts for tax credit.

  • An energized executive committee will keep you posted as the case progresses They include Mary Soderstrom as President, Ron Diamond as Treasurer; Jack Ruttan, Secretary; and Ann Charney, Stuart Robertson, and Laird Stevens, Members-at-large.

– The ERDC

ERDC Annual General Meeting, Informal report by Jack

The March 26, 2003 Annual General meeting of the Electronic Rights Defence Committee was a big success. We gathered at the Dieu du Ciel, a very popular pub, but the noise was such that we had to withdraw to Le Nouvelle Petite Ardoise, a more sedate bistro up the street. Apologies to anyone who arrived late, and did not see my notice (very big and bold, I swear) pinned up to the bulletin board by the door.

Good news included continuing success from our by-mail fundraising drive. Our war chest is in the best shape it’s been for a long time, but we still aren’t even a quarter of the way to what we need. If you haven’t donated, please consider doing so.

Let me or Mary Soderstrom know if you want to know more about the budget and we’ll forward you our information package.

Mireille gave a legal report. We can’t talk strategy here, because the walls have ears, but there are three other e-rights cases in North America besides ours: the Association des journalistes independants du Québec versus many defendants, Heather Robertson versus the Thompson Chain in Toronto, and Tasini versus The New York Times. Tasini won the judgement by the Supreme Court in the famous decision of 2001. However, they were referred to a lower court to assess damages.

That is where it is now, with no decision yet. The other two cases have not advanced as quickly as was hoped, at least for now.But our case is moving ahead.

The next step is to have our new representative David Homel undergo cross examinations. Next will come several accessory proceedings, and then a Court date will be set for the hearing on the authorization, a major step on the road to the final judgement. Last week was the sixth anniversary of the case. That’s according to the age of Patrick, son of our former treasurer, Stephanie O’Hanley. She was pregnant with him when the group started. So, there’s not much left to report. Our executive was re-nominated, and stands as this:

Mary Soderstrom – Chair
(replacing Stuart Robertson, who had to step down because of illness. Get well, Stuart!)
Ron Diamond – Treasurer
Jack Ruttan – Secretary (your loyal scribe)
Ann Charney – Executive Member at Large
Stuart Robertson – Executive Member at Large
Laird Stevens – Executive member at Large

There will be an Executive meeting some time in May. This will be open to all who are interested, and details will be forthcoming.The time and place of the next Annual General Meeting will be determined, but will happen around the same time of year as this one.

Again, thank you to everyone who expressed their support, and we hope to see you in person some time.-Jack Ruttan, ERDC Secretary

P.S. Donations should go to:

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

David Fennario Benefit report

Hello, Electronic Rights Supporters!

On the Monday before last, September Ninth, the Centaur Theatre in Montreal held a benefit for David Fennario, playwright and freelancer, and class representative for the ERDC’s lawsuit against Southam et al., struck with Guillan-Barré syndrome (Chronic Inflammatory Demyelating Polyneuropathy). He’s recovering slowly, but in the meantime, here’s a writeup of the event: This is a short, personal, and informal report on the David Fennario Benefit at the Centaur Theatre last night, Monday, September Ninth, 2002.

It’s good that a benefit sells out, but too bad that not everyone who came could get in. Seating was limited by the size of the main Centaur theatre space, with no standing allowed. A long lineup was turned away, selling out just as I got to the ticket window. I bought ERDC Chair Stuart Robertson’s ticket from him, and took in the performance along with the infinitely charming Me. Mireille Goulet, our lawyer in the Electronic Rights lawsuit against Southam et al.

There were video excerpts, scenes from plays, and speeches. Bits of old CBC documentaries gave us a look at a Fennario with longer hair. Centaur’s former artistic director Maurice Podbrey gave a video letter from a very cozy-looking and paradisical part of South Africa. Over the evening, I enjoyed the section from “Balconville” most, performed by Jean Archambault, Yolande Circe, Jean-Guy Bouchard and Brent Watson, introduced by the director of the original production, Guy Sprung. Sprung was right in saying that one of the Centaur’s four sandstone pillars belonged to Fennario, as that bourgeois theatre had supported that working-class playwright (and vice-versa) from nearly the beginning. But this selection, like most of the other snippets from Fennario’s work, was way too short. I would have enjoyed a staged reading of the complete play, or one of the other works, perhaps in a larger, more informal space. It’s still possible.

Effective too was a reading from Fennario’s most recent play, “Perimeters,” about the Quebec Summit protest. This was acted by Anne Fuerstenberg, Laura Teasdale, and Diana Fajrajsl, and was even more compelling to me, thinking about the tear gas that had been let off that very day in downtown Montreal around Concordia University. Other actors and playwrights gave testimonials, such Michael Rudder, Vittorio Rossi, Diane English, and James Kidnie. To me it all seemed a little funereal, too much like a memorial service rather than a celebration. Especially considering that the object of the testimonial, David, was present for the whole performance. Tired, but looking better than how Mireille had described him earlier in the year, he gave a moving “thank you” from his wheelchair when it was finished, noting that “he was in better shape than the Pope.”

Bowser and Blue rounded out the evening with their style of political humour, which hit it off well with the crowd. I would have thought that an ensemble like Norman Nawrocki and Dem Stink would have been more up Fennario’s alley politically speaking, but might not have had the drawing power among the Centaur audience.

After David’s words when the performance had ended, the audience retired to the lobby bar for some politically-correct “Blue” beers. The bar proceeds, along with ticket sales and donations all went directly to David and his family. Contributions can still be made. Make them payable to the Centaur Theatre company, but mark them clearly for David Fennario. They’ll issue a tax receipt.

The address is: Centaur Theatre Company
433 St-François-Xavier
Montreal, Qc. H2Y 2T1
Jack Ruttan,
ERDC Secretary.

ERDC: report on the Consultation on Digital Copyright Issues.

Dear ERDC Executive,

I thought I’d write an informal report about Mary Soderstrom’s and my morning at the hearings on copyright law at the Holiday Inn.

The event was like a proper hotel conference, with all of us getting neatly-printed name cards on strings (mine said “Jack Ruttan, Electronic Rights Defence Committee (ERDC)”) and also an identifier table card with the same thing, which I should have kept to put out at our executive meetings. It took place at the Ambassador Suite at the Holiday Inn, archly decorated with padded tapestry rectangles on the walls, and swaths of white, translucent fabric overhanging the moderators’ table. Each table got an elaborate microphone which lit up red when you pressed the base to talk into it, and there were computerised projections in French and English, and simultaneous translation from a booth at the side.

I should have taken advantage of the translation, but I had a headache, and couldn’t stand the thought of the thing in my ear. Most of the presentation was in French, however, and most of it went by me. This was one of the sessions that is taking place across the country where the Government Heritage ministry is listening to submissions about copyright law. There had been other sessions in Ottawa, maybe Toronto, and later in Vancouver.

I met later with two members of the Linux Users groups (Linux is a software operating system, like Windows, but meant to be distributed free — they gave me some sample disks. Linux users are like the Gnostics of the computer world. They have the One True Path). Somehow they had found the money to follow the hearings clear across the country, in case something nasty was done that they had missed.These copyright issues are of vital importance to software people, as that is where much copying is done, and its newer technology, and law hasn’t quite caught up with it. Other interested people represented archives and databanks, there was a smart copyright lawyer from McGill, and then there were the creators (that’s Mary and I, and maybe a couple of music people, and photographers). Tracy Arial of PWAC was there, as was Nancy Morelli of from the Concordia archives, on behalf of the archivists.

So it’s good we were there, to fly the banner, even though most of the material presented didn’t have much to do with us. Mary made her presentation late in the morning, translating it into French on the fly (most of the spoken material was in French), and got the only applause of the morning when she said that the material in the documents was too prolix for anyone to understand (see the text at the end of this message, and attached in Microsoft Word format, for the written text Mary gave to the commission’s secretary). Most of the material certainly went over my head, though I sketched pictures of a couple of people, such as the woman working for the Heritage Department whose job it was to record every word on her laptop.

Mary made her speech just before lunch (light and cheap, but a big spread may have given the wrong message). She should have stayed, because there was a very lively debate at our crowded table, among the writers (mainly Tracy), the software programmers (including a strange young guy with an Amish beard, tattoos, and a way of widening his eyes like Yoda from “Star Wars” when he thought you were saying something foolish), and the archivists and photographers. Also following the day was Craig Silverman, a freelance reporter for HOUR newspaper. He is writing a three-part series on copyright (appearing in about three weeks), which will mention the ERDC.

So we announced our presence, though I don’t know how well it fit in with the other material. But I’m glad that Mary took the initiative to make the government and other interested parties see that we are here and alive. –Jack Ruttan, Thursday, March 21

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