• Copyright in Registered Plans of Survey Belongs to the Crown
  • November 3, 2017 | Authors: Adrian J. Howard; Jillian Brenner
  • Law Firm: Borden Ladner Gervais LLP - Ottawa Office
  • Keatley Surveying Ltd. v. Teranet Inc., 2017 ONCA 748

    Land surveyors brought a class action alleging copyright infringement through the digitizing, storing and copying of the plans of survey created by the surveyors and registered in Ontario’s electronic land registry system, Teranet.

    Teranet sought summary judgment on the issue of the impact of registration or deposit of plans of survey under the Teranet system on Crown copyright as described in section 12 of the Copyright Act. The motion judge held that copyright in the plans of survey registered or deposited under the ELRS belonged to the Province of Ontario, and not to the surveyor who created the plan.

    The Ontario Court of Appeal has upheld the decision of the motion judge, albeit from a slightly different reasoning.

    The Court recognized copyright in plans of survey, noted they are artistic works, and the land surveyor is the author of said work. The Court further noted that surveyors do not have to register a plan with the province of Ontario, and that there are measures that can be taken to prevent that from happening. However, the Court did state that if the surveyor owned copyright then there is a breach of copyright regardless of whether a government employee or a third-party retained by the government makes a copy.

    After reviewing the whole of the statutory scheme for plans of survey, the Court held that the Crown has complete control over registered or deposited plans of survey and complete control over the “publication” of those plans of survey within the meaning of the Copyright Act. However, the Court did not find that the legislation transfers “ownership” of the copyright to Ontario. Instead, Ontario’s publishing of plans of survey, making those copies available to the public, is done under the “direction or control of Her Majesty”, thus section 12 of the Copyright Act provides that copyright in the registered plans of survey belongs to the Crown.

    On this basis, the decision on summary judgment to dismiss the class proceeding was upheld.