Good News and Not So Good News in ERDC-Canwest Settlement:
Electronic Rights Recognized, But Compensation to Be Less Than Hoped

The Electronic Rights Defence Committee (ERDC) wishes that its settlements with parts of the Canwest communication empire would result in a lot more money in the pockets of freelance writers, but is pleased that the settlements include explicit recognition of the importance of protecting electronic rights and the need to compensate writers fairly for the use of their material.

The Honourable Justice Eva Petras of the Quebec Superior Court approved the settlements June 18, 2010. In March 2009, she had authorized the ERDC to proceed with a $33 million class action, originally begun in 1997, on behalf of freelance writers. At issue was work published in The Gazette that was being used electronically without permission and/or adequate compensation. For the last several years writer and translator David Homel has been the designated representative of the class which includes several hundred writers who produced thousands of articles.

The ERDC’s settlements are with Canwest Publishing Inc./Publications Canwest Inc.(which is the legal successor through amalgamation of Montreal Gazette Group Inc, Canwest Interactive and Infomart Dialog Limited) and Canwest Global Communications Corporation. Both are in protection-against-creditors proceedings before Ontario courts. This means that the actual amount of the settlements is undetermined because the creditors’ claims against the corporations are still being processed.

The ERDC’s claim against Canwest Publishing has been valued at $8,500,000 for voting and distribution purposes in respect of arrangements being worked out between Canwest Publishing and its creditors. The ERDC’s claim with Canwest Global Communications is valued at $500,000. In both cases the amounts that the ERDC will eventually receive on behalf of members of the class are likely to be very substantially less as the protection against-creditors procedures are wound up. The ERDC will hold the money and/or stock in trust until the class action is completely settled and a formula for distribution of the settlement to class members is approved by the courts.

“We are pleased that freelance writers will eventually receive some compensation for their work used electronically, and that the other side explicitly acknowledges “the importance of protection of electronic rights and fair compensation for the electronic dissemination of content,” said ERDC President Mary Soderstrom. “But we regret strongly that it has taken 13 years to get to this point, and that, because of the protection against creditors proceedings, freelancers will receive amounts much less than the face value of the settlements.”

She added that the ERDC also continues to maintain that contracts which freelancers have been forced to sign with The Gazette and Canwest are unfair.

The settlements themselves and the announcement of the class action can be found on the ERDC’s website http://www.erdc.ca

For more information:

Mary Soderstrom, ERDC president

Source: Chris DiRaddo

(Download PDF file )

The Electronic Rights Defence Committee (ERDC) is pleased to announce it has reached a tentative settlement with two of the defendants in our long-running class class action arising from unauthorized electronic use of the freelance stories in The Gazette of Montreal. In addition, the Quebec Superior Court has ordered the posting of a Notice to Members of the class together with copies of the settlements. This starts the ball rolling toward a payout to class members. Links to the documents are below:

1.ERDC_Notice_to_members_2010-06-06_CGCC_+_LP_-FINAL_APPROUVE_FRANCAIS.pdf

2.ERDC_Notice_to_members_2010-06-06_CGCC_+_LP__FINAL_APPROUVE_ANGLAIS.pdf

3.ERDC_Transaction_Revised_2010-06-01_FINAL(2).pdf

4.ERDC_Transaction_with_Canwest_Publishing.pdf

The settlements are with Canwest Publishing Inc./Publications Canwest Inc.(which is the legal successor through amalgamation of Montreal Gazette Group Inc, Canwest Interactive and Infomart Dialog Limited) and Canwest Global Communications Corporation. Both are in protection-against-creditors proceedings before Ontario courts. This means that the actual amount of the settlements is undetermined at present because the creditors’ claims against the corporations are still being processed.

However ERDC’s claim against Canwest Publishing has been valued at $8,500,000 for voting and distribution purposes in respect of any plan of compromise or arrangement proposed by CPI to its creditors. The ERDC’s claim with Canwest Global Communications is valued at $500,000.

In both cases these amounts will be reduced very substantially as the protection-against-creditors procedures are wound up. It is possible that we could receive about 10 to 15 cents on the dollar. Certainly it will be months, if not years before we receive anything.

Both these settlements require court approval. We will have more to say about what they mean in the days to come.

The documents we’re sending you will also be posted on our website, http://www.erdc.ca, as well as on that of six writers organizations.

Please feel free to circulate the notice widely.

Cheers

Jack Ruttan, secretary
Mary Soderstrom, president

List of other organizations which will post the notices

http://www.sfpavocats.ca (Attorneys of the group Website)
http://www.writersunion.ca (The Writers’ Union of Canada (TWUC))
http://www.qwf.org (Quebec Writers’ Federation (QWF))
http://www.uneq.qc.ca (Union des écrivains québécois (UNEQ))
http://www.pwac.ca (Professionial Writers’ Association of Canada (PWAC))
http://www.ajiq.qc.ca (Association des journalistes indépendants du
Québec(AJIQ))
http://www.cfunion.ca (Canadian Freelance Union (CFU));

photo by Mary Soderstrom

As the natural world explodes with coming of summer, it’s appropriate that ERDC supporters remember the presence, and counsel of our late former Chair, Stuart Robertson, a passionate gardener. Present Chair Mary Soderstrom had a note on her blog when he passed last year, telling something of his contribution to the Committee. Other links are [here] and [here.]

It’s been 8 months now since Stuart left us. He was one of the founding members of the committee, and will be missed. It’s fitting that this has been a particularly good year for forget-me-nots.

Jack Ruttan, ERDC Secretary
Mary Soderstrom, ERDC Chair

On the agenda will be news from our longtime legal counsel Me Mireille
Goulet about the progress of the case, as well as a chance to meet Me
Catherine Sylvestre, a key member of our expanded legal team. Elections
of the ERDC executive committee will also be held.

The meeting should last about an hour to an hour and a half, and there
will be refreshments. It would be useful to know if you plan to attend:
please reply by e-mail to Jack, jack.ruttan090@sympatico.ca.

Jack Ruttan, secretary
Mary Soderstrom, chair

http://erdc.ca

From the beginning our lawyer Mireille Goulet had a contract giving her
25 per cent of an eventual settlement. The Fonds d’aide aux recours
collectifs (a Quebec government agency which provides seed money for
class actions) has advanced funds over the years, money that must be
returned when a settlement is reached.

After single-handedly winning class action authorization from Quebec
Superior Court last year (a really great feat: she was up against a team
of the biggest law firms in Canada), Me Goulet sought additional help for
the next steps.

The ERDC executive committee agreed to this last June, and Me Goulet
interviewed several possible legal teams. The class action specialists
Sylvestre, Fafard, Painchaud have agreed to come on board: the
extra-judicial fees due the firm and Me Goulet remain at 25 per cent as
before (plus taxes and reimbursement for disbursements), unless the
case goes to appeal; when the percentage rises to 30 per cent. If the
case goes to the Supreme Court, the percentage will be 33 per cent.
Please note that all plans for compensating freelance writers when the
case is settled must be approved by the courts.

Mary

Jack

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

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

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

OBITUARY STUART ROBERTSON 1944 – 2009 Suddenly after a courageous fifteen year battle with lymphoma on September 23, 2009. Beloved husband and best friend of Donna. Loving and proud father of Jeremy. Survived by his mother Joan and his father John (Barbara). Brother-in-law of John Banks (Brenda). Will be warmly remembered by his many friends and colleagues. Visitation at the Kane & Fetterly Funeral Home, 5301 Decarie Blvd., (corner Isabella) on Friday, September 25, 2009 from 3 to 5 and 7 to 9 p.m. Funeral Service at Westmount Park United Church (corner Lansdowne & de Maisonneuve Blvd W.) on Saturday, September 26, 2009 at 11 a.m. If desired, a monetary or blood donation can be made to Hema Quebec, http://www.hema-quebec.qc.ca . Condolences may be received at http://www.kanefetterly.com

Jack Ruttan, ERDC Secretary

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.