The Queen’s Own Copyright: Supreme Court of Canada to Decide on Copyright Ownership for Works Submitted to Government Registry

June 22, 2018

By Max Rothschild and Tamara Céline Winegust

On Thursday June 21st, the Supreme Court of Canada granted leave to appeal in the matter of Keatley Surveying Ltd. v. Teranet Inc. Both the application for leave to appeal and the application for leave to cross-appeal were granted.

The case pertains to section 12 of the Canadian Copyright Act, which addresses the term of copyright for works prepared or published by or under the direction or control of government. Specifically, it concerns a long running copyright dispute between land surveyors and Teranet, a private company that manages Ontario’s electronic land registry system as a service provider to the government. Teranet provides copies of surveys to the public upon payment of a fee, without paying any royalties to the land surveyors who prepared the surveys. The system is governed by law, which prescribes the fee levied by Teranet. Keatley brought a class action on behalf of 350 land surveyors, alleging that Teranet infringed the surveyors’ copyright, and unlawfully appropriated the benefit of the surveyor’s work.

Both the Ontario Superior Court and the Ontario Court of Appeal held against Keatley and denied class proceedings, although the two courts took different approaches to reach substantively the same determination. In 2016, the Ontario Superior Court concluded that surveys registered and deposited with the Ontario Land Registry System became the property of the province, but that section 12 of the Copyright Act did not in-and-of-itself provide that the government also acquired copyright ownership of the surveys. However, certain provisions of the Ontario Registry Act and Land Titles Act dictated that the province attain copyright in the surveys, and so Keatley and the rest of the land surveyors were not entitled to a class action. In 2017, the Ontario Court of Appeal upheld the trial decision, but the Court found that it was section 12 of the Copyright Act, alone, which brought the surveys under provincial ownership and control. The Court observed that once surveys were registered and deposited with the Ontario Land Registry System they would be digitized and reproduced, and held that this constituted “publication” within the meaning of section 12 of the Copyright Act.

This case has been featured in Bereskin & Parr’s Copyright Year in Reviews, both in 2016 and 2017. The dispute has worked its way through the Ontario courts, and the matter will now be heard by Canada’s highest court. It will be interesting to see how the Supreme Court of Canada interprets section 12 of the Copyright Act, as well as the related Ontario statute provisions, and whether or how it finds that the province owns copyright in the surveys. We will be keeping an eye on the case and provide updates as they arise.

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