Teresa Scassa - Blog

In the 2010-2011 school year, a teacher at a London, Ontario high school used a pen camera to make surreptitious video recordings of female students, with a particular emphasis on their cleavage and breasts. A colleague noticed his activity and reported it to the principal, who confiscated the pen camera and called the police. The police found 19 videos on the camera’s memory card, featuring 30 different individuals, 27 of whom were female. A warrant…

The Ontario Court of Appeal has just handed down its decision in Keatley Surveying Ltd. v. Teranet Inc. The case involved a copyright dispute between land surveyors and the private company retained by the Province of Ontario to run its land titles registry. There are relatively few court decisions that discuss Crown copyright in Canada, and so this case has been an interesting one to watch.

It has long been accepted that land survey plans are works in which copyright subsists and that the author of a plan of survey is the surveyor. Under the Copyright Act, this creates a default presumption that the surveyor is the owner of copyright in the work. The dispute in this case is about what happens when that plan is deposited in the provincial land titles registry. While such deposits have been taking place for decades, the issue only became controversial after Ontario moved from its old paper-based registry to an electronic system run by a private company on behalf of the province. Under the electronic system, Teranet, the private company, charges fees for access and for the downloading of documents, including plans of survey. The plaintiff, representing the class of surveyors, objected to what it saw as Teranet profiting from the commercial reproduction and dissemination of their copyright-protected works.

For the surveyors to succeed with their action, they had to establish that they owned the copyright in their works. Section 12 of the Copyright Act reads:

12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

The trial judge found that since they did not create the works under the direction or control of Her Majesty, the Crown could not be said to be the owner of copyright in the plans. However, he was unwilling to find that copyright remained with the surveyors, since to do so might jeopardize the land titles system. Instead, he found that copyright in the plans of survey is “transferred to the province” when plans are deposited. This conclusion is somewhat problematic. As I pointed out in my post on this earlier decision, the Copyright Act requires a signed assignment in writing in order for a transfer of ownership to take place. If the provincial legislation effected a transfer of ownership other than according to the terms of the federal Copyright Act, then this would seem to be a potentially unconstitutional interference with federal jurisdiction over copyrights.

Although constitutional issues were raised before the Court of Appeal, the Court of Appeal arrived at its decision in a way that managed to evade them. The Court agreed that surveyors were the authors of their plans and were thus the original copyright owners. It also agreed that the Crown in right of the Province of Ontario ended up as the copyright owner once the plans became part of the registry. However, Justice Doherty, writing for the unanimous court, disagreed with the approach taken by the trial judge, and rejected the idea that there was a transfer of ownership when plans were deposited in the land titles registry. Instead he adopted a rather interesting interpretation of Crown copyright.

Section 12 of the Copyright Act provides thatthe Crown is the owner of copyright in any work that “is, or has been, prepared or published by or under the direction or control of Her Majesty […]”. Justice Doherty agreed that the plans were not prepared under the direction or control of Her Majesty, but focused instead on the “or published” part of s. 12. In his view, “[m]ere publication” by the Crown does not give rise to Crown copyright – the publication has to be “by or under the direction or control of Her Majesty”. Justice Doherty reviewed the legislation and regulations that related to the land titles system. He noted that the legislation provides for deposit of plans of survey with the province’s Land Registry Office. The statutory scheme also sets strict parameters for the form and content of any plans of survey that are to be deposited. The plans are subject to review, and the Examiner of Surveys can raise questions about the plans with the surveyors, and can require changes to be made before the plans are finally accepted. Justice Doherty noted that this review process did not constitute the “direction or control” necessary to give rise to Crown copyright on the basis that the works were prepared under the direction or control of Her Majesty. However, he found it relevant to the question of whether the “subsequent publication of the registered or deposited plans occurs under the “direction or control” of the Crown.” (at para 37).

Justice Doherty also noted that once a survey plan is deposited in the register, the surveyor is no longer able to make any changes to it without permission from the Examiner of Surveys. He observed that s. 145(6) of the Land Titles Actalso permits the Examiner to make changes at the behest of a third party. Both the Land Titles Act and the Registry Act provide that “certified copies of registered or deposited plans of survey must be made available to members of the public upon payment of the prescribed fee.” (at para 39) Justice Doherty found that the statutory obligation to provide copies of a work “is fundamentally inconsistent with the claim by the document’s author to a right to control the making of copies of the document.” (at para 40) He observed as well that O.Reg 43/96 to the Registry Act provides that no plan deposited in the registry can include “any notes, words or symbols that indicate that the right to make or distribute copies is in any way restricted.” (s. 9(1)(e)).

Justice Doherty found that this combination of provisions created a context in which 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.” (at para 44) As a result, the plans are works that are published under the direction or control of the Crown, giving rise to Crown copyright in the documents. He stated:

Considered as a whole, the provisions demonstrate that plans of survey registered or deposited in the ELRS are held and published entirely under the Crown’s direction and control. Ownership of copyright does not, however, flow from the provincial land registration scheme. It is s. 12 of the Copyright Act that vests the copyright in the Crown by virtue of the publication of those plans under the “direction or control” of the Crown. (At para 45.)

The solution arrived at by the Court of Appeal is certainly more elegant than that proposed by the trial judge. Nevertheless, it does raise important questions. The first is what actually happens to the original copyright of the surveyors. The Court accepts that they are the first owners of copyright, and that the legislative system does not effect a transfer of rights. Yet at the end of the day, the Court finds that the Crown has copyright in the works. Presumably this extinguishes the copyright of the surveyors, but on what basis? If it is not a transfer, is it an expropriation? What level of statutory/regulatory control is required to trigger such a shift in ownership?

It might not have been necessary for the court to go so far as to find that the Crown assumed copyright over these works. At one point Justice Doherty states that: “The copyright rests in either the Province or the land surveyor who prepared the plan of survey. If the land surveyor has copyright, the making and distribution of paper or digital copies of the plan of survey is a breach of copyright whether done by an employee of the Province or by a third party hired by the Province to perform that function.” (at para 19). What this statement overlooks is the possibility of a licence – one that might well be implied once a surveyor deposits a plan with the land titles registry. Essentially, the same provisions of the statutory regimes governing the registration of plans of survey could be used to support the view that a surveyor who deposits a plan with the registry provides a broad, perpetual licence to the government to reproduce and disseminate the plans as part of the land titles system.

Crown copyright has been a thorn in the side of many who see it as unnecessary at its most benign and a threat to open government at its worst. This decision may breathe complicated new life into this controversial fixture of the Canadian copyright regime.