A lawyer in Toronto has filed what has been called a novel “mass copyright infringement” class action, which contends that lawyers enjoy copyright in the court documents they create. Superior Court Justice Paul Perell’s February 21 decision certifies a $51 million-plus national class action, but leaves a number of potentially contentious issues to be determined on an individual, rather than class basis.
The class action, which breaks new ground in Canada, was launched in 2010 by prominent Toronto immigration lawyer Lorne Waldman. He alleges that Thomson’s Westlaw Litigator service infringed his copyright and moral rights, and those of lawyers, by reproducing in various downloadable formats, and making available for a fee online, more than 100,000 pleadings, court motions, and affidavits, the defendant has copied from court files across Canada. There are 12,000 to 13,000 lawyers’ names, and about 6,500 firm names, on the court documents in Litigator.
Thomson Reuters, which says it has invested substantially in Litigator (including paying more than $1 million to courts for file access fees and photocopying charges), disputes the plaintiff’s allegations on the merits. It denies infringing copyright, and raises defenses based on fair dealing, public policy, implied consent and the Charter guarantee of freedom of expression.
The case’s central question is the extent to which lawyers enjoy copyright protection for their open-court filings.
“The copyright in legal documents is not a settled matter,” Justice Perell observed in his decision. “There are serious policy questions about how much, if any, [copyright] protection ….legal documents, including court documents, should have.”
In opposing the certification of class proceedings, Thomson Reuters argued that Mr. Waldman is trying to limit access to publicly filed court documents, asserting this is antithetical to the open court system, access to justice, behavior modification and judicial economy.
But Justice Perell ruled there were common issues that should be determined on a class basis, albeit not all of the issues presented for certification by the plaintiff.
He pointed out that the test for the certification presents a “very low bar” for plaintiffs. Therefore, his function as a gatekeeper was “limited to ensuring that the technical and procedural elements of the test are satisfied, which, subject to some adjustments, is the situation for the case at Bar.”
“Viewed globally, the class action will not be unmanageable and indeed may not have to be managed much, if Thomson is correct that class members are not interested in pursuing claims,” he wrote.
The judge certified two common issues relating to Thomson’s alleged conduct. Did the company through its Litigator service: (1) “reproduce, publish, telecommunicate to the public, sell, rent, or hold itself out as author or owner of court documents?” or (2) “authorize subscribers to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold themselves out as the author or owner of court documents?”
The judge also certified common issues raised by Thomson’s defenses: “Does Thomson have a public policy defense to copyright infringement or to the violatioin of moral rights based on (a) fair dealing, (b) the open court principle, (c) freedom of expression, (d) the necessity of using the idea of the court document as it is expressed, or (e) a business or professional custom or public policy reason that would justify reproducing, publishing, telecommunicating to the public, selling, renting, translating, or holding itself out as the author or owner of court documents?”
Moreover, “did Thomson have the copyright owner’s implicit consent to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?”
Certified as common issues as well: “are class members entitled to injunctive relief” under s.34(1) of the Copyright Act; and “does Thomson’s conduct justify an award of aggravated, exemplary, or punitive damages?”
