Teresa Scassa - Blog

A recent Federal Court of Appeal decision may have significant implications for the licensing of government data by federal and provincial governments. Nautical Data International Inc v. C-Map USA Inc. is a decision that relates to a lawsuit brought by Nautical Data against the defendant C-Map after C-Map allegedly used data from Canadian Hydrographic Service charts and maps to create its digital charts. Nautical Data took the position that it had acquired the rights, through an exclusive licence, to the raw data that was used in the preparation of the charts, and that these rights were infringed by C-Maps activities. Of course, the two parties were competing in the production of digital navigation products.

Typically, government data licences, whether open or otherwise, assert that the government has rights in the data being licensed. Even the federal government’s recently proposed Open Data Licence covers information that is defined as “information protected by copyright or by database right...”. Leaving aside the imported and inappropriate reference to database rights that do not exist in Canada (see my earlier blog on this point), the government is clearly assuming that it has copyright in the data that is the subject of such licenses. Geobase’s Unrestricted Use Licence Agreement also boldly asserts that “Canada is the owner of or has rights in the data (the Data) addressed by the terms and conditions of this Agreement”. The claims, evident in these open licences, are repeated in more closed licences as well. The licence at issue in the Nautical Data case defined CHS data as “any data owned by Canada and maintained by CHS”.

This idea that data can be “owned” and that copyright law is the vehicle for this ownership is clearly evident in these and in many other licences in both the private and public sectors. This is the case, notwithstanding the fact that in copyright law, there can be no monopoly in facts or data. Copyright will only protect an original expression of facts or data. In a compilation of data, that expression will be manifest in an original selection or arrangement of the data. Even if there is an original selection or arrangement, the protection extends only to that selection or arrangement; it never extends to the underlying data.

While copyright academics have made this point before, it has largely fallen on deaf ears. That is why the comments by the Federal Court of Appeal on this point are so interesting. While the decision is not on the merits of the case (the litigation was about whether summary judgment should be rendered on the issues; the court ruled was that it should not – that the matter should proceed to trial) Justices Nadon and Sharlow state quite plainly that “there can be no copyright in information.”(at para 11). Moreover, they express a certain surprise at the wording of the licence. They state:

Section 6.1 is intended to be a formal acknowledgement of Crown copyright, but it refers to copyright in the CHS Data. Either the parties were unaware that copyright could not subsist in information (which we would not presume), or they understood the phrase “CHS Data” by necessary implication to mean or at least include the CHS Works, even though the definition of “CHS Data” in the licence seems to limit its meaning to “data”. (at para 13)

This is perhaps one of the politest ways possible to criticize the drafting of the licence. Justices Nadon and Sharlow go on to note that the allegation in the licence that the Crown “owns” the data is similarly troublesome. They state: “If it is intended to mean that data can be owned in the same way as property can be owned, then there is some question as to whether it is correct as a matter of law. . . . there is no principle of property law that would preclude anyone from making use of information displayed in a publicly available paper nautical chart, even if the information originated with the Crown or is maintained by the Crown.” (at para 14)

These statements are both interesting and important, and direct attention towards the rather thorny issues around the protection of data in Canada. Data producers, whether in the public or private sectors, have asserted claims to copyright in their data that are far stronger than the law apparently supports. They can do this largely because to challenge such a claim would require engaging in costly and time-consuming litigation which is beyond the reach of ordinary citizens and many businesses as well. It is perhaps the law’s version of Stephen Colbert’s ‘wikiality’ – let’s call it legiality: if you can get enough people to say that certain rights exist, then perhaps for all intents and purposes they do.

Although the copyright issues are not fully litigated in this installment of the Nautical Data saga, the statements by Justices Nadon and Sharlow are a jurisprudential shot across the bows (if you will forgive the nautical reference) of those who claim excessive rights to data in copyright licenses. Whether it is the Nautical Data case that will eventually provide the clarification of the law on these issues or other cases that may be working their way through the system, it really is time for our courts to reinforce the Federal Court of Appeal's clear message regarding over-claiming data licences: there simply is no copyright in facts.

Recently, the decision of the Ontario Court of Appeal in Jones v. Tsige was celebrated by privacy advocates for recognizing a new privacy tort in Ontario. The plaintiff/appellant Jones received an award of $10,000 in damages for harm suffered as a result of the defendant’s unauthorized access to her bank records over a period of time. An even more recent dispute between Jones and her lawyer has highlighted a chronic problem with privacy law in…