Archive for the ‘Canada’ Category

RE:ERDC: Developments in Freelance copyright news

Hi, Jack.

I spoke to the lawyer this morning and he asked me to change the contact info that TWUC sent me. They’ve set up a hotline for questions about Robertson v. Thomson:

1-866-777-6323

And an email address: robertsonvthomson@kmlaw.ca

Thanks,

Lori

Thu, 1 Oct 2009

Fw: How to get answers re Robertson/Globe & Mail Settlement

Dear Freelancing Members,
If you have a question as to whether you are eligible to file a claim in the Globe & Mail class action suit, please address it to Anthony Guindon, a lawyer for the appellants.

ANTHONY GUINDON
Koskie Minsky LLP
900-20 Queen Street West
Toronto, Ontario
M5H 3R3
Tel: 416-595-2118
Fax: 416-204-2826
email: aguindon@kmlaw.ca

Best,
Lori

Two important items of electronic rights news for Canadian Freelancers:

1) Article in the Montreal Gazette, Oct 1: Writers’ Associations Boycotting Transcontinental Publications:

http://www.montrealgazette.com/technology/Writers+associations+boycotting+Transcontinental/2053076/story.html

2) Information on how the Heather Robertson Class Action settlement may affect you:

From: Lori Schubert

Date: September 29, 2009 4:03:47 PM EDT (CA)
To: ***********
Subject: FW: Class Act Settlement may affect you

Dear Members,

The Heather Robertston V. Globe and Mail has been settled in favour of the Class, which includes many freelance writers. If you had work published as described below, you may be entitled to make a claim. Please read the following announcement carefully. Once you’ve established that you’re eligible, you can download the claim form at
http://www.kmlaw.ca/site_documents/061719_Claim_18sep09.pdf.

Lori Schubert
Executive Director
Quebec Writers’ Federation
1200 Atwater Avenue, Suite 3
Westmount, QC H3Z 1X4

(514) 933-0878
admin@qwf.org
http://www.qwf.org
http://quebecbooks.qwf.org
http://lovemsjulie.blogspot.com

NOTICE OF APPROVAL OF THE SETTLEMENT OF CLASS PROCEEDING ROBERTSON V. THOMSON AND OTHERS

If you are a writer, artist or photographer, wherever you live, please read this notice carefully as it may affect your rights.

This is a court-approved notice to people who may be members of the Class in the above class proceeding. It describes the class proceeding, the class of people affected, and the court-approved settlement of this class proceeding.

In 1996, Heather Robertson (the “Plaintiff”), a freelance writer, commenced an action against The Thomson Corporation (now, Thomson Reuters Corporation), Thomson Canada Limited (now, Thomson Reuters Canada Limited), Thomson Affiliates and Information Access Company (now, The Gale Group, Inc.). In 2001, the action was amended to include Bell Globemedia Publishing Inc. (now CTVglobemedia Publishing, Inc.) as a defendant (collectively, the
“Defendants”).

In the action, the Plaintiff alleges that the Defendants infringed the
rights of creators or assignees of original literary or artistic works
published in print media in Canada (“Works”) by disseminating or authorizing the dissemination of copies of the Works through electronic databases, contrary to the Canadian Copyright Act. The Plaintiff sought compensatory, punitive and exemplary damages, as well as injunctive relief, on behalf of writers, artists and photographers who created the Works (“Creators”), their estates and assigns. The Defendants denied the Plaintiff’s claims.

In 1999, the Superior Court of Justice certified this action as a class
proceeding, on behalf of the creators of original literary and artistic
Works, their estates or assigns, where they live. The Class includes the following people:

A. All persons who were the authors or creators of original literary works or original artistic works (collectively “Works”) which were published in Canada in any newspaper, magazine, periodical, book, newsletter, journal or other paper-based form whatsoever (collectively “Print Media”) which Print Media have been reproduced, distributed and/or communicated to the public by telecommunication by the Defendants through any computer database, CDROM, diskette, on-line service, or other electronic system or device (collectively “Electronic Media”), on or after 24 April 1979 except:

(a) persons who by written document assigned all of the copyright in their Works to the Defendants or their predecessors in interest in the subject Print Media; or

(b) persons who by written document granted to the Defendants or their predecessors in interest in the subject Print Media a license to publish or use their Works in Electronic Media; or

(c) persons who were unionized employees of the Defendants or their
predecessors in interest in the subject Print Media are excluded regarding any Works created for the subject Print Media at times when their unions’ collective agreements governed the use of their Works in Electronic Media. Where the Print Media publication was a Canadian edition of a foreign publication, only Works comprising the content exclusive to the Canadian edition shall qualify for inclusion under this definition. (Persons included in Clause A shall hereinafter be referred to as “Creators”).

B. All persons (except the Defendants or their predecessors in interest in the subject Print Media) to whom a Creator, or an Assignee, assigned, granted or transmitted a right to publish or use their Works in Electronic Media. (Persons included in clause B shall hereinafter be referred to as “Assignees”).

C. Where a Creator or Assignee is deceased, the personal representative of the estate of such person unless the date of death of the Creator was on or before December 31, 1943 (the “Class”).

By further Order of the Court dated August 12, 2009, the action was limited to Works published in print prior to May 1, 2009.

SETTLEMENT APPROVAL

A court approved Notice of the Settlement Approval Hearing was published in The Globe and Mail, the National Post, Le Journal de Québec and La Presse on May 9, May 16 and May 23, 2009, as well as on certain websites. The parties attended before the Ontario Superior Court of Justice on June 16, 2009, and obtained court approval of the settlement agreement reached between the parties, as well as Class Counsel fees in the amount of $4,000,000.

The Court determined that the Settlement is fair and reasonable, and in the best interests of Class Members.

Settlement Benefits

Under the terms of the approved Settlement, the Defendants will pay
C$11,000,000, inclusive of legal and settlement administration fees, to
provide benefits to Class Members. The Settlement includes a compensation plan for freelance Works, an alternative take-down benefit for freelance Works that appeared in The Globe and Mail, as well as a donation to the Professional Writers Association of Canada, The Writers’ Union of Canada and the Canadian Association of Photographers and Illustrators in Communications, to the general benefit of all Creators of written and artistic Works. The settlement includes a release of all claims, as well as a license in respect of Works that are not taken down.

The case has been financially supported by the Class Proceedings Fund operated by the Law Foundation of Ontario, and as required by law 10% of the net proceeds of the case will be paid to the Class Proceedings Fund.

The Compensation Plan

Eligible Class Members may complete and submit a claim form to the Claims Administrator, listing freelance Works created before May 1, 2009 for which compensation is sought. The Claims Administrator processes the claims and establishes entitlements of individual Class Members, according to the distribution scheme outlined below. For Works that appeared in The Globe and Mail, Eligible Class Members may choose to forego compensation, and instead request that those Works be removed from the commercial databases maintained by the Defendants.

The compensation owing to individual Class Members will be determined by the Claims Administrator, on the basis of a points system. Briefly, a member’s entitlement to compensation will be calculated on the basis of a points system which takes into account various factors, particularly the following:

1. Whether the individual was paid or not paid for the initial publication
of any freelance Work;

2. The length of the Work;

3. The publication in which the Work initially appeared. Under the terms of the Settlement, no individual Class Member will be entitled to compensation in excess of 1% of the total Compensation Fund.

Administrator’s Fees
The fees of the Claims Administrator will be deducted from the Settlement
Funds.

TO MAKE A CLAIM FOR COMPENSATION
The Court appointed William Dovey of Cole & Partners as Claims
Administrator. The Claims Administrator’s contact information is as follows:
80 Richmond Street West, Suite 2000, Toronto, Ontario, M5H 2A4
Tel: (416) 361-2590 Fax: 416-364-2904

To receive compensation, each Class Member must submit a completed Claim Form and supporting documents, on or before 5:00 p.m. Toronto time on January 18, 2010. The Claim Form is available at Class Counsel’s website, http://www.kmlaw.ca/robertsonvthomson, or by calling Cole and Partners, at
(416) 361-2590 or by visiting their website at
http://www.coleandpartners.com, or by email to
claimsadministrator@coleandpartners.com.

The Claim Form should be submitted by mailing, emailing or faxing the Claim Form and supporting documents to the Claims Administrator at the above-noted address.

If you fail to submit a Claim Form and the supporting documents, on or
before 5:00 p.m. Toronto time on January 18, 2010, you will not receive any part of the net settlement monies unless the Court extends the deadline.

OPTING OUT
If you are a person falling within the Class described above and you did not opt out when the action was certified in 1999, you will automatically be included in the Class unless you opt out now. Class Members who do not opt out may seek the settlement benefits described above.

Class Members may choose to opt-out now. If you opt-out, you will not be entitled to any of the benefits of the settlement.

To opt out of the Class you must fill out the Form below and send it to
Koskie Minsky LLP (at the address listed below), the lawyers for the Class. The deadline for opting out is November 2, 2009. If your written request to opt out is not received by that date you will remain a member of the Class.

FURTHER INFORMATION
If you are a Class Member and wish to obtain additional information
about the Settlement, please contact Koskie Minsky LLP at the address below:

Koskie Minsky LLP
Barristers & Solicitors
20 Queen St. West, Suite 900, Box 52
Toronto, ON, M5H 3R3
Re: Robertson v. Thomson et al.
In addition, information is available on Class Counsel’s website at
http://www.kmlaw.ca/robertsonvthomson.
PLEASE DO NOT CONTACT THE COURT OR THE REGISTRAR OF THE COURT ABOUT THIS CLASS PROCEEDING. THEY ARE NOT ABLE TO ANSWER YOUR QUESTIONS.
Dated: September 19, 2009

***********
Jack Ruttan, ERDC Secretary

Please visit http://www.kmlaw.ca/Case-Central/Overview/Status-Of-Case/?rid=104 for details and a history of the case. Then click on the  Documents section to find the text of the settlement.

Basically, the case was 13 years in litigation, and the settlement is for $11 million for 5-10,000 class members. Legal will get $4 million of that.  More on this later.

You may have heard by now that Heather Robertson has reached a settlement in her lawsuit in Toronto: [link to story on CBC.ca]

The ERDC (Electronic Rights Defense Committee) congratulates Heather and her team. We’ll comment more completely when the terms are published, later this week or over the weekend.

Jack Ruttan
ERDC Secretary

After more than a decade, the Electronic Rights Defence Committee (ERDC) has received authorization from Quebec Superior Court to proceed with a class action suit against some of the biggest names in Canadian media.

At issue is electronic use without permission or compensation for work by freelance writers in The Montreal Gazette. The defendants are the Montreal Gazette Group, CanWest Global Communications, Hollinger Canadian Publishing Holdings, CanWest Interactive, Southam and Southam Business Communications, Infomart Dialog and Cedrom-SNI.

In February 2008, the Honourable Eva Petras, J.S.C., heard three days of arguments from Mireille Goulet – the ERDC lawyer, and a team of lawyers representing the defendants. The Justice’s decision was rendered March 31, 2009. It authorizes the ERDC to institute class action proceedings with writer and translator David Homel as its official designated member. The class action group includes all freelance writers whose articles, originally published in The Gazette, have been allegedly illegally reproduced on the Infomart data base since 1984.

The next steps will lead toward a trial on the merits of the case, a process which may take several years to reach a conclusion.

The ERDC case is one of several in North America seeking compensation for unauthorized electronic use of freelance writers’ work. In October 2007, the Canadian Supreme Court ruled five to four in the Heather Robertson vs. Thomson case that freelancers do indeed hold copyright on their work reproduced in electronic data bases. The US$ 18-million class action settlement in the United States which followed from the Tasini vs. New York Times case is currently before the US Supreme Court, which has agreed to decide whether a lower court has jurisdiction to approve settlement agreements. The Association des journalistes indépendants du Québec (AJIQ) is also currently in the process of undertaking a class action against several Quebec media providers.

Link to judgment (in English) http://www.jugements.qc.ca/ (Search for
Superior Court decisions in March 2009 (cour superieure, keyword: ERDC)

Dear ERDC Members and Supporters,

Three cheers for Heather Robertson! The October 12 decision in her favour by the Supreme Court of Canada regarding her class action suit against Thompson et al, is another victory for freelance writers seeking to maintain control of the work they produce, and working towards modern, equitable copyright law. Meanwhile, the ERDC’s job continues. Our lawyer, Me. Mireille Goulet, our Class Representative, David Homel, and the ERDC executive have been working all this while on the road to approval of our own lawsuit against Southam et al., which will lead directly to a decision by the Quebec Supreme court, which we hope will also go in our favour.

Despite numerous and continuous delaying tactics by the opposition (their only [effective strategy] real strategy), we are moving steadily to this goal. The Robertson decision, following on such landmarks as the 2001 Tasini decision vs. the New York Times, strengthens our case, and is another battle won in the continuing war for electronic rights and a fair deal for freelancers.

We will keep you abreast of news, as it happens.

Jack Ruttan, ERDC secretary, for the ERDC Executive.

Dear Friends

Just a reminder: July 15, 2005 is the deadline for opting out of the proposed US copyright class action settlement.

Me Mireille Goulet, the lawyer for the Electronic Rights Defence Committee as well as lawyers for Heather Robertson who is involved in a class action against the Thomson newspaper empire and the lawyer for the Writers’ Union of Canada are recommending that Canadian freelance writers opt out of the US class action.

The Literary Works in Electronic Databases Copyright Litigation is soon
to receive US Court approval for a settlement in the order of 10 to 18 million dollars US. It will award up to $1,500 per document to freelancers who have registered that document with the US Copyright Office: such registration is required under US law. Non-registered documents will be treated differently, with a maximum award per document of $60 for a document which originally sold for $3,000.

Non-registered copyright claims, however, will only be paid after registered copyright claims have been paid. This means that if court-approved costs (such as lawyers’ and administration fees and legal notices like the Globe and Mail ads), and claims for registered documents amount to more than $18 million, there will be little left to pay non-registered claims.

Canadian copyright law has not required registration anywhere. Under the terms of the settlement, practically all Canadian freelancers will find themselves in the category of non-registered claimants. Therefore they will be paid according to a much-diminished claim schedule, if at all.

Furthermore, by agreeing to this settlement, Canadian freelancers waive their rights to claims under any other copyright class action. This means that when the ERDC’s and Heather Robertson’s cases are settled, Canadian freelancers who agreed to participate in the US case will not be able to participate in the Canadian settlements.

Me Goulet strongly recommends that Canadian freelancers opt out of the US case. You can do this by letter or by e-mail. The electronic exclusion form, as well as frequently asked questions and more information about the settlement, is available at http://www.copyrightclassaction.com. If you prefer to exclude yourself by letter, send it to:

Literary Works in Electronic Databases Copyright Litigation
c/o The Garden City Group, Inc.
PO Box 9000, # 6250
Merrick, New York
USA 11566-9000

ERDC president Mary Soderstrom will be glad to field your questions at
(514) ***-****.

When you opt out, please inform Mary (msoder@aei.ca) and/or ERDC
Secretary Jack Ruttan (jackr@axess.com) that you have done so: we will need in the information for the ERDC’s case.

Mary Soderstrom, President
Jack Ruttan, Secretary

For the Electronic Rights Defence Committee

FREELANCE WRITERS WHO HAVE CONTRIBUTED TO THE MONTREAL GAZETTE AND OTHER CANWEST GLOBAL PUBLICATIONS ARE ADVISED TO OPT OUT OF AN ELECTRONIC RIGHTS CLASS ACTION SETTLEMENT IN THE UNITED STATES

IF YOU DON’T, YOU WAIVE YOUR RIGHTS TO PARTICIPATE IN FUTURE CANADIAN SETTLEMENTS.

Deadline is July 15, 2005

(Please circulate widely)

Dear Electronic Rights Defence Committee members

Many of you undoubtedly saw the recent full-page ads in the Globe and Mail, National Post and Time Canada about the possible settlement of a major electronic rights litigation in the United States.
According to our lawyer, Me Mireille Goulet, the case has some similarities with the Electronic Rights Defence Committee’s case against The Montreal Gazette, Southam and its legal successors, including the fact that CanWest Global is part of it. But because of important differences between US and Canadian copyright law, Me Goulet, as well as attorneys for Heather Robertson, who is also pursuing electronic rights class actions in Canada, advise all Canadian freelance writers who have contributed to The Montreal Gazette or other CanWest Global publications to opt out of the US case.

Opting out must be done by July 15, 2005.

The Literary Works in Electronic Databases Copyright Litigation is soon to receive US Court approval for a settlement in the order of 10 to 18 million dollars US. It will award up to $1,500 per document to freelancers who have registered that document with the US Copyright Office: such registration is required under US law. Non-registered documents will be treated differently, with a maximum award per document of $60 for a document which originally sold for $3,000.

Non-registered copyright claims, however, will only be paid after registered copyright claims have been paid. This means that if court-approved costs (such as lawyers’ and administration fees and legal notices like the Globe and Mail ads), and claims for registered documents amount to more than $18 million, there will be nothing left to pay non-registered claims.

Canadian copyright law has not required registration anywhere. Under the terms of the settlement, practically all Canadian freelancers will find themselves in the category of non-registered claimants. Therefore they will be paid according to a much-diminished claim schedule, if at all.

Furthermore, by agreeing to this settlement, Canadian freelancers waive their rights to claims under any other copyright class action. This means that when the ERDC’s and Heather Robertson’s cases are settled, Canadian freelancers who agreed to participate in the US case will not be able to participate in the Canadian settlements.

Me Goulet strongly recommends that all Canadian freelancers opt out of the US case. You can do this by letter or by e-mail. The electronic exclusion form, as well as frequently asked questions and more information about the settlement, is available at http://www.copyrightclassaction.com. If you prefer to exclude yourself by letter, send it to:

Literary Works in Electronic Databases Copyright Litigation
c/o The Garden City Group, Inc.
PO Box 9000, # 6250
Merrick, New York
USA 11566-9000

ERDC president Mary Soderstrom will be glad to field your questions.

When you opt out, please inform Mary (msoder@aei.ca) and/or ERDC Secretary Jack Ruttan (jackr@axess.com) that you have done so. Me Goulet says that Canadian courts will require information about which ERDC members were included in the US action when our settlement is reached.

Mary Soderstrom, President
Jack Ruttan, Secretary

For the Electronic Rights Defence Committee