Does copyright subsist in documents that must be submitted as part of judicial or regulatory processes and that are, as a result, publicly available? Some time ago I wrote about two cases making their way through the legal system that raised this issue. A proposed class action settlement agreement in one of these cases, Waldman v. Thomson Reuters Canada, Ltd., has just been smacked down by Justice Perell of the Ontario Superior Court.
The representative plaintiff of this class action lawsuit is lawyer Lorne Waldman, who is well known for his representation of Maher Arar, among others. The defendant is Thomson Reuters Canada Ltd., which operates a major legal database on a fee-for-access basis. As part of this database it provides a “Litigator” service which includes copies of documents filed by lawyers in important cases in Canada. The kinds of documents reproduced in Litigator include affidavits, factums, and pleadings. Such documents are of use to other lawyers – and to the growing number of self-represented litigants – as precedents, or as research resources. They are also of interest to law students and legal academics.
The copyright issues around such documents are interesting. Most would be considered original works of authorship, and would normally be protected by copyright. Because these documents must be filed in court proceedings, they are generally publicly accessible under the open courts principle. However, for the most part these documents are still not available in open, electronic databases hosted by courts. Where they are not electronically available, individuals may consult the court files in person, and/or may request copies of documents for a fee. No licence is sought by the court registrars from lawyers in these circumstances for the right to copy their documents. Indeed, under the open courts principle, a lawyer could not refuse permission to access or copy these documents. Although not directly on point, in a recent court decision in the U.S., which involved claims of copyright in court documents, the court found that as between courts, clients and their lawyers, copyright issues had to take a back seat to the interests of justice.
Even if there were no general licence to copy court documents, in the case of those who are not parties to the litigation and who seek to use such materials, whether they are found in court records or in Litigator, copyright’s fair dealing exception for research or private study would most likely cover their activities. Recent Supreme Court of Canada decisions make it clear that courts should take a liberal approach to interpreting fair dealing, including fair dealing for the purposes of research or private study. In 2004, the Supreme Court of Canada specifically found that research for commercial purposes – including legal research carried out for clients – fell within the scope of this defence. It is less clear that the activities of Thomson would qualify as fair dealing, but to the extent to which they facilitate access to documents already available to the public, there may be some traction to the argument.
It is likely that rather than find that documents filed in court are not protected by copyright at all, a court would find that there is an implied licence permitting copying in respect of all documents filed in court proceedings. What is less clear is the scope of any such licence. Would it include the broad-based copying of materials so as to make them available for a fee? Would it make a difference if the cost of acquiring copies through this paid service was less than the cost of acquiring those copies through the courts?
In the settlement agreement that was brought to the court for its approval, Thomson agreed not to claim copyright in the materials in Litigator, and to provide notice to its subscribers that some material in its database might be covered by third party copyright. It also agreed that for a period of ten years (and apparently no longer) it would give notice to any lawyer whose materials it planned to include in Litigator. If the lawyer objected to the inclusion of the materials, those documents would be excluded from the service. It also agreed to create a trust fund to support public interest litigation. In exchange for the above, the class members would provide Thomson with a non-exclusive worldwide, perpetual and irrevocable licence to use the works. Class members would have the ability to opt out of the settlement. The settlement agreement also included a fee of $850,000 to be paid to the lawyers for the class.
There was support for the settlement from a number of organizations such as the Canadian Bar Association, the Canadian Civil Liberties Association, and the B.C. Civil Liberties Association. These organizations were chiefly onside because of the trust fund that would benefit public interest litigation. Six class members also wrote letters in support of the settlement. However, support was not universal. Seven class members wrote letters opposing the settlement. It may not be surprising that the lightning rod for opposition to the settlement was the huge disparity between the amount of the fund created to support public interest litigation and the fees sought by class counsel. One opponent wrote: “this smacks of lawyers taking an opportunity to make money in a scenario where there was likely little value to the individual class members.” (at para 69). Another stated: “This reeks of a distortion of the noble goal of legitimate class action proceedings”. (at para 70). A third lawyer objected on the basis that he felt that court documents were public as of the moment of filing, and should be readily available electronically. Another noted that class members received nothing of benefit in exchange for the licence they would be required to give to Thomson.
Justice Perell was unequivocal in his rejection of this settlement agreement. He found that the Agreement was not “fair, reasonable, and in the best interests of the Class Members” (at para 90). He found that the settlement allowed the plaintiffs to “emerge unscathed” from what was now “prohibitively high-risk litigation” (presumably because of the weakness of the copyright claims). For Thomson, the Agreement would allow it to acquire, at relatively low cost, 13,000 non-exclusive copyright licences and releases from copyright owners. They also would evade any litigation risk, and would be spared further costs of litigation.
Justice Perell found that the class members would derive no benefit from the agreement. In fact, he concluded that the agreement “brings the administration of justice and class actions into disrepute because: (a) the Settlement is more beneficial to Class Counsel than it is to the Class Members; and (b) in its practical effect, the Settlement expropriates the Class Members’ property rights in exchange for a charitable donation from Thomson.” (at para 95). Interestingly, Justice Perell characterized the principle at issue in this case as being “that Thomson should not take what most lawyers would be prepared to give away for free if only politely asked.” (at para 98). Here, Justice Perell found that providing Thomson with a licence did not respond to that basic principle. He found that “there is no access to substantive justice for the claims of Class Members and no meaningful behaviour modification for Thomson.” (at para 101)
Justice Perell was also scathing about the imbalance between the amount of the charitable trust fund and the amount of the lawyers’ fees. He was not mollified by the offer of class counsel to donate $150,000 of their fee payment to the trust fund. He wrote “a fairer and more reasonable resolution of this class action would have been to seek court approval of a discontinuance of the action on terms that provided for a cy-près payment and a fair and reasonable Class Counsel Fee and no granting of licences.” (at para 107)
It would seem that this suggestion of a possible settlement embraces the view that no licence is needed to copy the documents at issue. Yet, it is not clear what any settlement that did not involve a concession of licences would mean for Thomson and its desire to continue offering these materials through Litigator. Without resolution of the underlying copyright issues, the uncertainty regarding the re-use of such materials will remain.