The Lawyers Weekly - March 25, 2011

It must be thrilling to be a representative plaintiff in a class action— at first and, if you win, at last. But most of the time, as an office it has to be fraught. You take onto yourself a neighbourhood of pain. And sometimes this dream of justice consumes 15 years.

In 1995, Heather Robertson published two pieces—an excerpt from one of her books and a book review — in the Globe and Mail. As was typical at the time, there was no explicit agreement between writer and publisher about copyright. Robertson subsequently learned that the Globe had reproduced the pieces in databases and on a CD-ROM. It was wake-up time for freelancers: across the continent, the major news and periodical publishers had seen the future, and it was digital. But they didn’t tell the freelancers they were storing the pieces electronically and scrabbling for every opportunity to remarket them without additional cost. In other words, they planned to upsell while paying zilch to the creators of the product.

It was one of the manifold ways in which IT turned the world topsy-turvy. And once we freelancers got over the shell shock, this became one of the first battlefields for redefining copyright in the digital age.

In 1996, claiming infringement, Robertson brought a class action, which was certified against a raft of big media defendants in

OFF THE RECORD

JEFFREY
MILLER

“…once we freelancers got over the shell shock, this became one of the first battlefields for redefining copyright in the digital age.

1999. Her motion for summary judgment barely squeaked by the Supreme Court of Canada, which held 5: 4 in 2006 that the databases, but not the CD-ROMS, infringed the authors’ copyrights: Robertson v. Thomson Corp., [2006] S.C.J. No. 43. The matter stumbled toward full settlement in the next four years, and just this month more than 800 of us got cheques in the mail.

But it was a skin-of-the-teeth
thing, which reminds me of the
hurt I felt—shock and awe, no
exaggeration — when I first
learned of the databases and cor-
porate schemes to piggyback prof-
its through them without cutting
me in, as a creator of the material
to be re-marketed ad infinitum.
When I say “learned of the data-
bases,” I mean I learned from other
writers, not from the publishers.

Speaking more broadly, Robertson ignores that the databases entail a new business venture designed, distinctly from conventional publishing, to meet the challenges, and especially the commercial opportunities, of the new digital age. The dissent, in surprising particular, turns a blind eye to the enormous added value these new ventures reap for the publishers. In negotiating their fees, the creators had no opportunity to consider this added value, one that increases exponentially with time, on their backs as workers in the trenches.

So thank you, Heather Robertson. You won for us in fact if not principle. As someone who has been trying to be a “serious writer” for nearly four decades, I can tell you it seems to be the only, uh, career, that generally gets harder and meaner the longer one hones his skills at it. You stood up and objected to that, loudly, so that the rest of us can keep grinding along in our own, humbler, digitized way. n

Jeffrey Miller, a writer, freelance translator (French-English) and lawyer, teaches law and literature in the law faculty at the University of Western Ontario. His latest book (in preparation) is Stan of Green’s Bagels: A Novel in Eight Recollections.

We want to hear from you! Email us at: tlw@lexisnexis.ca 

Integrated justice information system has been a disaster

Quebec
Continued From Page 3

help to find ways to improve the justice system. Without statistics, it’s all but impossible to “actually know what’s going on,” and identify the “weak links” in the system. A case in point is the issue of settlements. The Quebec Ministry of Justice does not have figures on how many cases are settled in the province, does not know when they occur during the process and does not know how they settled, adds Piché, who recently completed a doctoral thesis on settlements.

“Linked to this lack of statis-
tics and research and informa-
tion about the weaker links is
that you actually have problems
with court administration and
court management,” said Piché.
“You see in this report that
there are very few tools that are
given to judges and court
administrators to conduct court
management, and this is a really
major problem that is related to
technology that is still absent in
the courts. We’re at the stage
where we have to let technology
come into the process, and it
would bring much better court
management, more efficiency in
the process, more structure in
the process and more access to
justice.”
An integrated justice infor-
mation system, otherwise
known by its acronym SIIJ, has
been in the works since
1999—and it’s been a disaster,
or, as Lachance puts it in his
report, the “project has not been
managed with a concern for
economy and efficiency.”
Intended to modernize the
administration of justice, the
partnership between the depart-
ments of justice and public
security along with the office of
criminal and penal prosecu-
tions have failed to keep close
tabs on costs and did not put in
place appropriate risk manage-
ment. Since 1999, nearly $30
million has been spent on the
project out of a budget of more
than $80 million and it is
nowhere near close to comple-
tion. The auditor general con-
siders there are “still major risks
that the budget, content and
timetables will not be respected.”
“The system would be a for-
midable tool,” said Ouimet, who
participated in the discussions
early on over the development
of the project. “It would respond

“You see in this report that there are very few tools that are given to judges and court administrators to conduct court management…

to the concerns raised by the
auditor general and improve
communication between the
different partners of the justice
system. But more than ten years
later, it doesn’t look good.”
Ouimet is not the only one
concerned. So too is the
National Assembly’s committee
on public administration, which
aside from examining all finan-
cial commitments equal to or
exceeding $25,000, authorized
by the government also hears
deputy ministers and chief
executive officers of public bod-
ies discuss their administrative
management. The committee
also hears the auditor general
with respect to his annual man-
agement report.

The committee also “expects” that the ministry of justice “ justify” the maintenance of each courthouse based on “ appropriate” criteria, such as volume of activity, cost and efficiency. A report was submitted in late January to the committee, but the ministry of justice has refused to make it public.