By Richard Stobbe

It’s time to update our 2015 post about copyright in survey plans!  In the course of their work, land surveyors in Ontario prepare a survey document, and that document is routinely scanned into the province’s land registry database. Copies of survey documents can be ordered from the registry for a fee.

Land surveyors commenced a copyright class action lawsuit against Teranet Inc., the manager of the land registry system in Ontario.  The case travelled all the way up to Canada’s top court and in Keatley Surveying Ltd. v. Teranet Inc.  2019 SCC 43 the Supreme Court of Canada (SCC) rendered a decision on the appeal: Copyright in plans of survey registered or deposited in the land registry office belongs to the Province of Ontario under s. 12 of the Copyright Act.

Section 12 of the Copyright Act provides a statutory basis for Crown copyright.

Under this section, the Crown holds copyright in any work “prepared or published by or under the direction or control of Her Majesty”.

The court aimed to balance the rights of the Crown in works that are prepared or published under the control of the Crown, where it’s necessary to guarantee the authenticity, accuracy and integrity of the works. However, the scope of Crown copyright should not expropriate the copyright of creators and authors.

Basically, Crown copyright applies where:

1. The work is prepared by a Crown employee in the course of his or her employment or
2. The Crown determines whether and how a work will be made, even if the work is produced by an independent contractor.

In both situations, the Crown exercises “direction and control” for the purposes of Section 12 of the Act.

In the Teranet case, the main question was whether the registered and deposited survey plans were published by or under the “direction or control” of the Crown. The court concluded that “When either the Crown or Teranet publishes the registered or deposited plans of survey, copyright vests in the Crown because the Crown exercises direction or control over the publication process.”

Applying the principle of technological neutrality, the court indicated that the province’s use of new technologies (after digitization of the survey plans and publication process) did not change the court’s assessment of whether the Crown has copyright by virtue of s. 12. Finally, because the Crown owns copyright in the survey plans pursuant to s. 12 of the Act, there could be no infringement under the electronic registry system, and the class action was dismissed.

Background Reading:

Copyright in Survey Plans

Calgary – 07:00 MST