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