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Keatley Surveying v. Teranet: It’s Time for a Blanket Statutory Obligation Exception

In Keatley Surveying, the small issue of whether a statutory regime of land titles registration involving the filing and dissemination of land surveys was addressed through a much larger question of copyright ownership of those land surveys. Ownership in the copyright of land surveys became the basis for maintaining the integrity of a land titles system when it could have been addressed through the statutory obligation exception in the Copyright Act.

Teranet is a statutorily empowered third party manager of Ontario’s land registry system. Land surveys registered on title are scanned and digitized, then made available to the public on payment of a statutorily prescribed fee. These surveys are accessed for a variety of purposes including for use in preparing other land surveys. The Ontario Land Titles legislation deems filed surveys to be Crown property and prohibits the use of words or symbols denoting copyright ownership.

Keatley Surveying, on behalf of a land surveyors class action, claimed that Teranet infringed copyright by “digitizing, storing and copying the plans of survey” deposited in the electronic land registry system.

The legal issue in Keatley Surveying was whether land surveys (copyrighted works under the Act) filed on title were owned by the survey’s author or the Crown. Section 12 gives copyright to the Crown “…where any work is, or has been, prepared or published by or under the direction or control of [the Crown]…” (emphasis added). Two concurring opinion wrestled with this wording.

The majority judgement, authored by Abella J., focused on whether the government exercises sufficient direction or control over the preparation or publication of the work. Abella J opined that there was sufficient direction or control noting that the statutory regime gives complete control over the process of publication to the government. Those who opt-in to registering their survey plans into the system lose their copyright to the Crown.

This is not the first time that a copyright owner has sued for infringement under a statutory regime authorizing the copying and dissemination of a work (see Geophysical Service v. Encana discussed on slaw here). The legal resolution in that case was also awkward.

These kinds of cases are better resolved through the creation (or at least more robust interpretation) of an exception to copyright infringement. At present, the Copyright Act creates an exception to copyright infringement to fulfill statutory obligations though it is directed at a closed list:

32.1 (1) It is not an infringement of copyright for any person

(a) to disclose, pursuant to the Access to Information Act, a record within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like material;

(b) to disclose, pursuant to the Privacy Act, personal information within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like information;

(c) to make a copy of an object referred to in section 14 of the Cultural Property Export and Import Act, for deposit in an institution pursuant to a direction under that section; and

(d) to make a fixation or copy of a work or other subject-matter in order to comply with the Broadcasting Act or any rule, regulation or other instrument made under it.

(2) Nothing in paragraph (1)(a) or (b) authorizes a person to whom a record or information is disclosed to do anything that, by this Act, only the owner of the copyright in the record, personal information or like information, as the case may be, has a right to do.

Courts could interpret this provision as being illustrative, rather than exhaustive, of excepted statutory obligations. Judges have been known to create exceptions not explicitly stated in a statute to avoid absurd results. And who would say that creating a copy of a survey, or disclosing seismic data, required or authorized by a statute should be subject to copyright liability especially when similar obligations are not? Can we really say the legislative intended such a result?

Better yet, the enumerated list under subsection (1) could be removed by amendment. Instead, a general provision could replace it clarifying that it is not an infringement of copyright to copy or disseminate a work, or to request or receive such a copy through dissemination, pursuant to a statutory regime that directly or indirectly authorizes such copying or dissemination.

The limitation in subsection (2) should remain, thereby facilitating statutory copying and dissemination without otherwise derogating from the author’s copyright ownership interests.

Courts have overreached on the copyright ownership issue, or created legal fictions, to achieve the intended policy goals of ensuring that the public interest in copying and disseminating certain kinds of information is not encumbered by copyright liability.

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