By Richard Stobbe

In response to the proliferation of recreational drones in American skies, the Federal Aviation Administration (FAA) introduced a rule known as the “Registration Rule” in 2015.  The rule required drone owners to register their drones with the FAA.   A recreational operator filed petitions in US Federal Court to challenge the FAA’s jursdiction to make the Registration Rule. The drone operator’s argument was that the FAA lacked statutory authority to issue the Registration Rule since it was outside the scope of the FAA’s jurisdiction. Last week, a  US Federal Court of Appeals decision  agreed and quashed the FAA’s Registration Rule.

This represents a set-back for the FAA’s regulatory reach over drones, and it illustrates the jurisdictional quandry of aviation regulators. In the US case, the FAA’s authority was actually curtailed by an earlier 2012 law, and this case did not turn upon a question of constitutional juridiction.

In Canada, there is a separation of powers between federal and provincial governments, and aviation falls into federal authority (as it does in the US). It is certainly open to drone operators to question the scope of the federal rule-making authority on constitutional grounds. In fact, in the drone industry that type of fight is likely to occur sooner or later in Canada.

If the FAA does not confirm its regulatory scope either through a court decision or amended legislation, then it won’t be able to maintain the drone Registration Rule. In any event, mere registration pales in comparison with the level of control that is suggested by this reported plan: The Trump administration is planning to ask Congress to give the federal government sweeping powers to “track, hack and destroy any type of drone over domestic soil with a new exception to laws governing surveillance, computer privacy and aircraft protection.”

This makes recent Canadian drone regulations positively benign by comparison.

Calgary – 07:00 MT

By Richard Stobbe

In a decision last year, GSI (Geophysical Service Incorporated) sued to win control over seismic data that it claimed to own. GSI used copyright principles to argue that by creating databases of seismic data, it was the proper owner of the copyright in such data. GSI argued that Encana, by copying and using that data without the consent of GSI, was engaged in copyright infringement. That was the core of GSI’s argument in multi-party litigation, which GSI brought against Encana and about two dozen other industry players, including commercial copying companies and data resellers.  The data, originally gathered and “authored” by GSI, was required to be disclosed to regulators under the regime which governs Canadian offshore petroleum resources. Seismic data is licensed to users under strict conditions, and for a fee. Copying the seismic data, by any method or in any form, is not permitted under these license agreements. However, it is customary for many in the industry to acquire copies of the data from the regulator, after the privilege period expired, and many took advantage of this method of accessing such data.

A lower court decision in April 2016 (see: Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230 (CanLII))  agreed with GSI that seismic data could be protected by copyright. However, the court rejected the copyright infringement claims, saying that the regulatory regime permits the regulator to make such materials available for anyone – including industry stakeholders – to view and copy. Thus, GSI’s central infringement claim was dismissed.

GSI appealed, and in April, 2017 the Alberta Court of Appeal (Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125 (CanLII)) unanimously agreed to uphold the lower court decision and reject GSI’s appeal. The decision confirmed that industry players have a legal right to use and copy such data after expiry of the confidentiality period, and the court was clear that regulators have the “unfettered and unconditional legal right … to disseminate, in their sole discretion as they see fit, all materials acquired … and collected under the Regulatory Regime”.  While the regulatory regime in this case does not specify that seismic data may be “copied”, there are extensive provisions about “disclosure”, none of which list any restrictions after expiry or the confidentiality or privilege period. Thus, the ability to copy data is the only rational interpretation which aligns with the objectives of the legislation.

This decision will apply not only to the specific area of seismic data, but to any materials which are released to the public pursuant to a similar regulatory regime.

Field Law acted for two of the successful respondents in the appeal.

Calgary – 07:00 MT