Crown owns copyright in survey plans registered in the Ontario land registry system

This post is in: October 5, 2017

Ontario Court of Appeal dismisses appeal brought by land surveyors

For more than a century, documents registered on title with Ontario land registry offices have been available to the public and copies are made at anyone’s request on payment of the prescribed fee. In 1991, the Ontario government established an electronic land registry system, which allows for the electronic registration of certain documents and online access to deeds, liens, surveys and other instruments registered in the system. The system itself is run on behalf of the province to Teranet.

In 2007, an Ontario land surveying company brought a proposed class action against the province and Teranet, alleging that both of them infringed surveyors’ copyright by digitizing, storing, and copying the plans of survey created by the surveyors and registered or deposited in the electronic land registry system. Initially, the plaintiff was unsuccessful in having the class action certified (2012 ONSC 7120), but the Divisional court reversed that decision (2015 ONSC 1677). Once certified, both parties brought motions for summary judgement and the court found in favour of Teranet. The plaintiffs appealed to the Ontario Court of Appeal.

In Keatley Surveying Ltd. v. Teranet Inc., the Court of Appeal was required to consider the effect of section 12 of the Copyright Act, which deems copyright in certain works to vest in the Crown:

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.

Before launching into the analysis of the question of the effect of section 12 of the Act, the Court made a number of important preliminary observations about the works at issue:

[21] Before addressing the relevant provisions of the Copyright Act, four non‑contentious but important points should be made. First, as acknowledged by the parties and the motion judge, copyright subsists in plans of survey prepared by surveyors. Plans of survey are “artistic works” as defined in s. 2 of the Copyright Act and attract the protection provided by s. 5.

[22] Second, the land surveyor who prepares a plan of survey is the author of that “work” and, subject to the provisions in the Copyright Act, the first owner of the copyright.

[23] Third, this case is concerned only with copyright in plans of survey that have been registered or deposited under the ELRS. The nature and extent of a surveyor’s copyright in plans of survey not registered or deposited under the ELRS is not before the court.

[24] Fourth, surveyors are under no obligation to deposit or register plans of survey under the ELRS. A land surveyor who does not want a plan registered or deposited can do at least three things to prevent registration or deposit. First, he or she can insert an appropriate term in the retainer with the client if the survey is prepared for a client. Second, the surveyor can refuse to sign the declaration required for the plan to be registered or deposited. Finally, and I think most clearly, the surveyor can avoid registration or deposit of the plan by placing on the plan a claim of copyright or any other restriction on the copying of the survey. Any indication on the plan restricting copying will assure that the plan will not be accepted for registration or deposit… [citations omitted]

Starting from the proposition that surveyors own the original copyright in their surveys, the question turned to whether depositing a survey with the land registry system changes the ownership to the Crown.

If a work is prepared or published by or under the direction or control of the Crown, the copyright in the work shall belong to the Crown. The principal question is whether a survey deposited on the system and made available through the system is published by or under the direction of the Crown. The Court concluded it is:

[43] The extensive property-related rights in the registered or deposited plans of survey bestowed on the Crown by the provincial legislative scheme must be considered as a whole when deciding whether registered or deposited plans of survey are under the “direction or control” of the Crown when they are “published” (when copies are made available to the public). The statutory scheme, considered in its entirety, goes far beyond simply authorizing the Crown to impose terms on the content and form of documents to be registered or deposited, or to copy plans of survey deposited or registered in the ELRS. The provisions oblige the Crown to maintain possession and custody of all registered plans of survey. The Crown must provide access to those plans upon request. The surveyor cannot place any marking on the plan claiming any kind of copyright. The surveyor cannot make any change to the plan once it is registered or deposited, without the permission of the Examiner of Surveys. The Examiner, on the other hand, can make changes even without the permission of the surveyor. Finally, of course, the Crown is statutorily obliged to provide certified copies upon request.

[44] The statutory provisions give the Crown 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. I am satisfied that certified copies of plans of survey made available to members of the public under the statutory scheme are works published under the “direction or control” of the Crown for the purposes of s. 12 of the Copyright Act. Pursuant to the terms of that section, copyright in registered or deposited plans of survey “belongs” to the Crown for the period of time prescribed in that section.

The appeal brought by the land surveyors was dismissed.