I Want It All And I Want It Now *

[*Queen, 1989]

Quick refresher on the basic principle of copyright law in Canada and most other countries – the creator (author) of an original work (music, lyrics, writings, photos, DVDs, videos, paintings etc.) is entitled to control how it gets used for a period of time, with some other limited exceptions.

There is no copyright in facts or ideas, however there is copyright in an original (creative) expression ( work ) of facts and/or ideas.

Copyright arises upon the creation of a work. You do not have to add the words “copyright” or “copyrighted”, or the symbol ©, in order to claim copyright in a work. You do not have to register in order to obtain copyright. Copyright comes into existence the moment the original work is created.

At the moment one of the hot topics of the legal blogsphere is the class action brought in Ontario against Thomson Reuters alleging that it is violating lawyers’ copyrights in pleadings and other materials that lawyers have created and filed in lawsuits. Similar issues have arisen before in other jurisdictions with varying results.

The allegations are that Thomson Reuters had copied the filed materials relating to certain cases. It has created a web based services called “Westlaw Litigator®” whereby persons can search by subject matter, law firm and or lawyer, and for a fee can download a copy of the copied materials, including editable forms of the materials. Apparently Thomson Reuters has added “© Thomson Reuters Canada Limited or its Licensors” to all of these documents digitized on its website. [The foregoing is gleaned from Sack Goldblatt Mitchell LLP’s website (the law firm representing the complainants) where it has made available the statement of claim ]

A visit to the Westlaw Litigator® website – home of the allegedly offending service – finds that it is being touted as “A database of actual filed pleadings, motions, memoranda, and jury instructions”. I did not venture further as I am not a subscriber.

The claim was issued on May 25, 2010, so no response has been filed yet. Not that I am remotely prescient, but I am sure the response will contain an attack on the merits of this being a properly brought class action suit.

It will also no doubt contain arguments that Westlaw Litigator® falls into the “fair dealings” use of copyrighted materials. They may counter by questioning who actually owns the copyright in the filed materials: the lawyers/law firm that authored them? The client who paid the lawyers to represent him or her? The courts themselves because they have to be“issued” by them in order to be part of a claim? Because these are public records that anyone can go in and search, are they not therefore in the public domain (i.e. not subject to copyright)? And if they are public records, is Thomson Reuters not free to create a database of them?

Thomson Reuters may also try to argue that the majority of lawsuit filings are themselves not “an original work”. The court prescribes the form and format of documents filed with it, and a significant part of pleadings are composed of references to other works – reported legal cases and legal texts – and facts.

I think that Thomson Reuter is on very shaky copyright ground here.

According to the claim, they have not edited or enhanced the materials. Thomson Reuters have just done a little digging in the public records of high profile cases, copied verbatim the materials in the court files, indexed the copied material by lawyer, law firm and subject matter and then created a database of these materials which Thomson Reuters customers who subscribe to the service can search and download for a fee. Apparently they have done all this without the permission of the authors of the materials who are arguably the copyright holders.

Whether or not the allegedly infringed materials are “creative” “original” etc. is a no go. The creation of these materials by lawyers – the choosing of what to reference, the presentation of arguments and the order in which they are presented – involves a significant amount of work and creative effort. Good pleadings, motions, draft orders etc. are concise well crafted works of non-fiction – or ideally they should be.

I don’t think that Thomson Reuters can distort the fair dealings exceptions – even the educational ones - to justify what they have done. When I went to law school in the Neolithic Age, in addition to legal texts, we often had to buy case books (which are now presumably digitized) - compilations of extracts (not whole chapters) from legal texts and parts of cases, that were compiled by the law professor (to torture students). The case books all had “reproduced by permission of the author/publisher” on the cover pages and were sold on a recovery of cost basis. Permission had been sought and granted. Profit was not being made. Thomson Reuters has apparently copied entire works, has not sought permission and is seeking to make a profit.

But my final point at this time is, if they win, would it not be open season for everyone to then go in and download all of Thomson Reuters’ databases and materials and set up competing websites? Or digitize and sell books that they publish? And hasn’t Google just been “spanked” and still faces issues with regard to its digitization of other peoples’ works?

It will be interesting to see how this matter develops.