The last part of long-running Robertson class action tenatively settled for $5.475 million

It has been announced that a tentative settlement of the final part of freelancer Heather Robertson's long-running lawsuit has been reached, this time with Toronto Star Newspapers Ltd., Rogers Publishing Limited, CEDROM-SNi Inc., ProQuest Information and Learning LLC . (The other named defendant in this tranche of the suit, Canwest Publishing Inc., reached a separate settlement last June.)

The class action lawsuit began in 2003 and concerned infringement of copyright of work produced by Robertson and other freelance writers whose work was disseminated on various electronic databases, without prior agreement by the writers. The class action was certified in October 2008.

The tentative settlement has still to be approved by the Ontario Superior Court of Justice and, to that end, a hearing will be held April 11, 2011 in Toronto. According to a notice of hearing

The tentative settlement includes a payment of C$5.475 million, inclusive of all costs and fees, including legal fees and administration costs, to provide benefits to class members. In return, there would be a release of all claims against these defendants and their affiliates and a license in respect of all literary works that were published in publications owned or operated by the Toronto Star, Rogers, Canwest or their affiliates. Class members would have a further opportunity to opt out of the settlement. If this settlement is approved, there would be a claims-based compensation process whereby class members could file claims for compensation with respect to their freelance literary works.

Rogers agrees to pay $1.65 million and Torstar $1.75 million and in return get permanent licenses to reproduce the disputed works in any electronic system or device (i.e. databases) and to sub-license the works to other. CEDROM is to pay $75,000 and the $2.07 million balance  by ProQuest, for whom exact terms are still being finalized.

Canwest's settlement in June 2010 was for $7.5 million and was made necessary early in order for Canwest to be restructured and broken up.

In May, 2009 a settlement for $11 million was made with with The Thomson Corporation (now Thomson Reuters Corporation), Thomson Reuters Canada Limited, Thomson Affiliated and Information Access Company (formerly The Gale Group Inc.) and CTVglobemedia Publishing Inc. (formerly Bell Globemedia Publishing Inc.), the then publishers of the Globe and Mail newspaper.

In each of these settlements, freelancers will get only a share of the money after legal fees are covered. (For instance, in the $11 million settlement it was estimated that about $5 million would be disbursed to members of the class action after the legal costs were paid.)

The defendants may have agreed to the settlement, but there is a sour denouement since, to avoid such a situation in the future, larger publishers such as Thomson and Rogers are routinely now demanding "all rights" contracts with their freelancers before making assignments. This is a distinct departure from the longstanding practice of freelancers selling "first rights" and retaining copyright and control over their work.

For further information on the tentative settlement and next steps, class members are asked to contact Koskie Minsky LLP re Robertson v. ProQuest et al.  by e-mail freelance1classaction@kmlaw.ca or by mail at 20 Queen Street West, Suite 900, Box 52, Toronto, Ontario M5H 3R3