Freelancers start receiving settlement cheques from Robertson copyright class action suit

Cheques have gone out to, and some have already been received by, Canadian freelancers as part of the settlement in one part of the long-running class action suit Robertson v. Thomson Corp. et al. The total paid out will be about $5.5 million, following deductions for professional fees and other court authorized distributions, with freelance writers receiving varying amounts depending on the number of articles that they published with the Globe and Mail and other defending publications.

This payout represented the first of three disbursements that will eventually be made in the decade-long action, fronted by freelancer Heather Robertson (see earlier stories listed below.) The essence of the suit was that the defendants repurposed or sold freelance articles for which they had only paid one-time rights, without the freelancers' permission or appropriate compensation.

The settlement of this part of the case was approved by the Superior Court of Ontario on August 12, 2009 and defendants in the case agreed to pay $11 million.These included the Thomson Corporation (now, the Thomson Reuters Corporation), Thomson Canada Limited (now, Thomson Reuters Canada Limited), Thomson Affiliates and Information Access Company (now, The Gale Group, Inc.) and Bell Globemedia Publishing Inc. (now, CTVglobemedia Publishing Inc.). Over 350 Canadian publications were cited in the case, including The Globe and Mail, Maclean’s, Chatelaine, Canadian Geographic, Toronto Life and now defunct Saturday Night magazine.

In November it was announced that a second part of the action had been settled with defendants  for $5.475 million with Toronto Star Newspapers Ltd., Rogers Publishing Limited, CEDROM-SNi Inc., ProQuest Information and Learning LLC. A separate deal was announced with Canwest in June as a precursor to the sale of the company.

According to a posting on the site of the lawyers for Robertson, the settlement stipulates that a writer can recover up to a maximum of 1% of this amount, which is estimated at $55,000.

Related posts:

• Final settlement in class action suite preferable to drawn-out trial, says Heather Robertson
• The last part of long-running Robertson class action tentatively settled for $5.475 million
• Two settlements down, one to go in the Robertson class action
• Robertson suit settlement goes to court for approval June 16
• PWAC hails settlement of rights suit as "a great achievement"
• Long-running freelance suit against publishers settled for $11 million 
• Robertson decision explained, more or less 
• What's what in the Heather Robertson case
• Robertson wins groundbreaking freelance suite after more than a decade of struggle 
• Robertson vs Globe gets to high court

Final settlement in class action suit preferable to drawn out trial, says Heather Robertson

Heather Robertson, the apparently indefatigable lead in the long-running lawsuit Robertson vs Thomson et al says that the settlement was preferable to going to trial and that it would mean more money, sooner, for freelance writers. 

As readers of this blog and other reports will know, the struggle (see this and  related posts below) concerns the allegation that the various publishers posted articles of freelance authors online without permission, contrary to Canadian copyright laws. It was announced earlier this month that a settlement had been reached for about $5.475 million with Toronto Star Newspapers Ltd., Rogers Publishing Limited, CEDROM-SNi Inc., ProQuest Information and Learning LLC. An earlier settlement was with Canwest in June and an even earlier settlement in May 2009 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. 

The settlements already made and the proposed settlement to be adjudicated in April total about $24 million. Writers will receiving an as-yet unspecified portion of this after legal fees from the suit are deducted. 

In a report that was published on the Toronto Freelance Editors and Writers listserv (available only to subscribers), Robertson said in part:

As with any lawsuit, there are risks of going to trial and it is possible a judge would find that the defendants did not breach copyright laws or that class members are not entitled to as much compensation as this settlement provides. The defendants have raised a number of complex defences as justification for their conduct. Overcoming these defences may be difficult and costly. This action also presents unique challenges to success. It is based on a provision of the federal Copyright Act that provides “statutory damages” to compensate for a copyright infringement. No court has applied a claim for statutory damages under the Copyright Act on this scale in similar circumstances. It is thus extremely difficult to anticipate the outcome of a trial.

She also said a settlement was preferable because a trial, even if successful, would draw the process out even longer.

A trial in this action could still be years away and, even if we won, it is a near certainty that the defendants would pursue any and all appeals.

She also reports that, in light of an earlier settlement with Canwest, any funds from the possible sale of Postmedia shares would add more(unpredictable)funds to the amount available to freelancers.

Over the next several months we will be working hard with the lawyers in this case to prepare for the settlement approval hearing in April 2011 and to design the claims process for the distribution of settlement funds to freelance authors and other persons that qualify as class members. Our objective is to create an efficient system for the distribution of settlement funds.

Writers who are members of the class action can obtain all of the details about the settlement hearing in April from the website of the law firm that is handling it, Koskie Minsky LLP.

Related posts:

• The last part of long-running Robertson class action tentatively settled for $5.475 million
• Two settlements down, one to go in the Robertson class action
• Robertson suit settlement goes to court for approval June 16
• PWAC hails settlement of rights suit as "a great achievement"
• Long-running freelance suit against publishers settled for $11 million 
• Robertson decision explained, more or less 
• What's what in the Heather Robertson case
• Robertson wins groundbreaking freelance suite after more than a decade of struggle 
• Robertson vs Globe gets to high court

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

Two settlements down, one to go in the Robertson copyright class action

Canwest Global Communications Corp. has announced the settlement of the long-standing copyright class action lawsuit about the electronic rights of freelancers that has worked its way through the courts for 13 years. Canwest (Canada) Inc., Canwest Limited Partnership / Canwest Societe en Commandite,-- collectively called LP Entities -- and the named writer in the suit, Heather Robertson, have agreed on a $7.5 million valuation of all claims by freelance writers who are parties to the lawsuit as unsecured creditors. 

In return Heather Robertson in the name of those creditors will vote in favour of a plan of arrangement in the insolvency proceedings of Canwest Publishing, which filed for creditor protection in January. All agreements in the case are subject to approval by the court on June 16.

The settlement is part of the dismantling and restructuring of CanWest by its major creditors and holders of its bonds, who have agreed to acquire all of the financial and operating assets of the company for about $1.1 billion, including all shares of the National Post Inc. and to inject about $950 million in cash.  Most of the cash will be used to pay off the senior secured creditors (called AHC) -- mostly made up of chartered banks.

Larger creditors will receive shares in a new corporate entity dubbed Newco, which will issue 40 million shares -- 27 million to AHC at $9.26 a share and 13 million to other creditors at a nominal price of $11.54 per share. Up to $130 million or about 35% of the cash injection, potentially could go to pay off smaller affected creditors, including the freelancers covered by the Robertson class action, providing they have proven claims. Those owed less than $1,000 would receive full cash payments. Those owed more than $1,000 would have the choice of accepting a $1,000 cash payment or receive shares in Newco on a pro rata basis.

The drawn-out class action over copyright in what has become called The Robertson case is winding its way to a conclusion; the suit was launched more than 13 years ago by Heather Robertson on behalf of thousands of freelance writers claiming their work was reproduced electronically without proper permission or compensation.

In May 2009, an $11 million settlement was reached 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 publishers of the Globe and Mail newspaper.After legal fees and other costs, about $4 to $5 million in compensation was to be available to individual writers, photographers and illustrators for freelance work published prior to May 1, 2009 in various newspaper databases.

The Canwest settlement does not terminate Heather Robertson's lawsuit against the remaining defendants in her class action: Proquest Information and Learning LLC, CEDROM-SNI Inc., Toronto Star Newspapers Ltd., and Rogers Publishing Limited.

Related posts:

•  Robertson suit settlement goes to court for approval
• Long-running freelance suit against publishers settled for $11 million
• Robertson decision explained, more or less
• What's what in the Heather Robertson case?
• Robertson wins groundbreaking freelance suit after more than a decade of struggle
• Decision to come, at last, in Robertson suit against Globe
• Robertson vs Globe gets to high court
• Coming to final arguments