Nathan Fan is a JD candidate at Osgoode Hall Law School.
It has been just over six years since the Supreme Court of Canada handed down its decision in CCH Canadian v. LSUC, the seminal fair dealing decision that saved LSUC lawyers from the copyright infringement claims of plaintiffs like The Thomson Corporation (pre-Reuters merger). On May 25, 2010, the lawyers and law firms of Canada have returned the “favour” by having a class action proceeding launched against Thomson Reuters for alleged infringement of copyright in legal documents made available by Westlaw’s “Litigator” service.
In the Statement of Claim filed by Sack Goldblatt Mitchell LLP with the Ontario Superior Court of Justice, the plaintiffs have named Thomson Reuters Corporation and Thomson Reuters Canada Limited as defendants in the copyright infringement action. Acting as lead plaintiff, Lorne Waldman (who was counsel to Maher Arar) claims that legal documents authored by him and more than 50,000 other legal documents authored by other lawyers have been reproduced by Thomson Reuters without their authorization (see here for an example of Waldman’s reproduced work included in the claim).
The Litigator service provides subscribers access to a searchable database of the 50,000-plus legal documents comprised of facta, pleadings, affidavits and notices of motion. The service also allows subscribers to search this database by the names of the counsel who authored the documents. The claim alleges that Thomson Reuters had spent months or even years attending court houses across Canada, scanning court files from leading Canadian civil litigation proceedings. These scanned documents were subsequently made available online in a downloadable format. The claim notes that the copied documents were purely mechanical copies and no modifications were made to the documents (noting that Thomson Reuters’ marketing stated that the documents are accurately “reproduced from court files”). Also of notable offense to the plaintiffs is the fact that the copies available for download are branded with a statement that asserts Thomson Reuters’ copyright ownership over the documents: “© Thomson Reuters Canada Limited or its Licensors. All rights reserved.”
In addition to the primary/direct copyright infringement claims, it is also asserted that Thomson Reuters engaged in authorizing infringement by encouraging its subscribers to copy and paste the content in the legal documents for use in their own works. Through advertising and marketing materials, Thomson Reuters has allegedly portrayed the Litigator service as an opportunity for subscribers to “get a head start on [their] own document creation” and provides the availability of “precedents from many lawyers and law firms so you’ll always have access to the fresh and novel drafting”. In the plaintiffs’ opinion, these and other statements give a clear implication of the permission, approval and encouragement sufficient to constitute authorization of infringement. Further, it is alleged that Thomson Reuters has not provided sufficient limitations or barriers to discourage subscribers from infringing uses, no easily accessible usage policy, nothing that warns or informs subscribers about potential copyright infringement, etc.
Among the many claims made, the plaintiffs have asked for $50 million in general damages for the class, disgorgement of profits made by Thomson Reuters from the infringement, $1 million in punitive damages, litigation costs, and a permanent injunction from using the documents.
If this claim is approved for a class action proceeding, it could represent an important case for the future of copyright in the age of digitization. Such a service clearly brings the benefit of having a large collection of useful content held within a single searchable database (services for case law are already indispensible for practitioners and academics). However, one of the struggles such a case must deal with is the interplay between a copyright owner’s right to compensation and whether a user’s fair dealing right can accommodate the use. Lorne Waldman aptly states what's at stake:
I have always been open to sharing my work in order to advance the law and assist members of the legal profession and the public, however I strongly believe that I and other authors of these documents have the right to ensure that our work is used appropriately, and with our knowledge and consent. This case will determine whether large corporations like Thomson Reuters can profit from the work of others, obtained and copied without permission.
A decision on this case might also speak to the viability of future mass digitization databases appearing in Canada, such as the Google Book Search Project (currently undergoing settlement approval in the U.S).
See here for the Sack Goldblatt class action website for future updates.