Who owns survey plans?

The Ontario Superior Court of Justice has ruled that the copyright in deposited survey plans belongs not to the land surveyor who prepared the plan but to the Province: Keatley Surveying v. Teranet.¹ How this might apply in British Columbia or other provinces is not certain, but the reasoning could likely be applied to conclude that, at the very least, there is an implied licence (if not actual ownership) permitting public reproduction of deposited survey plans.

History of the dispute

In 2001, the Province of Ontario completed the conversion of its paper-based land registration system into an electronic land registry system (“ELRS”). The new ELRS permitted licenced users to access and copy real property records, including plans of survey, upon payment of a licence fee to the private company, Teranet, that manages the system on behalf of the Province.

In 2007, Keatley Surveying brought a class action suit against Teranet on behalf of approximately 350 land surveyors in the province. In 2015, the suit was certified on appeal.² The surveyors claimed copyright to the plans of survey and alleged that by providing copies to licenced users, Teranet was in violation of that copyright. They were particularly concerned that “a for-profit third party ‘[has] inserted itself between the government and users of land registration services and reaps substantial profits at the expense of class members’”.³

The decision

Of the seven certified common issues before the Court, the Court’s conclusion that copyright in the survey plans belongs to the Province on deposit or registration in the Land Registry Office was determinative. This conclusion relied on the fact that two provincial statutes, the Ontario Registry Act and Land Titles Act, both specified that survey plans submitted or deposited for registration become “the property of the Crown” and required that survey plans be copied, computerized and distributed for a fee.⁴ In its analysis, the Court acknowledged that transfer of ownership in a document does not necessarily affect ownership in the copyright of a document.⁵ It went on to look at the other provisions in the applicable legislative and regulatory regime to interpret the language of the legislative regime to mean that the copyright passes to the Province. ⁶ This is a relatively surprising conclusion that might have been equally addressed under an implied licence analysis.

The Court’s interpretation of the Ontario legislative regime left unanswered the question of whether the “fair dealing” defence could be applied to defend against the allegation that Teranet’s use infringed copyright, an issue that the Court noted had “generated much debate”.⁷

Impact in British Columbia

The British Columbia Land Title Act specifies that plans deposited in the Land Title Office vest in the Land Title and Survey Authority, can be computerized, and must be provided to applicants.⁸ These are all similar to the Ontario legislative and regulatory regime that the Court found persuasive in Keatley; however, the British Columbia regime is not identical and does not go quite as far as that applicable in Ontario.

Nevertheless, Keatley may have a role to play in clarifying copyright ownership in BC as well. In particular, much of the analysis in Keatley about ownership might equally be applied to an analysis of an implied licence permitting the use and copying of survey plans for public purposes. This would still leave room for debate about the scope of such an implied licence, but it certainly lends support to the concept.

Keatley does not clarify the position of entities, such as municipalities or regional districts, which do not benefit directly from a statutory vesting of ownership. If those entities wish to digitize and provide plans of survey to the public, they must instead rely on the possibility of the implied licence defence⁹ or the fair dealing research exception,¹⁰ which have not yet been addressed in the case law.

The class plaintiff in Keatley, now appellant, has filed an appeal to the Ontario Court of Appeal, raising a number of alleged errors.  Among other grounds of appeal, the appellant has indicated its intention to argue that, if the Ontario legislation requires the transfer of ownership of copyright, it is ultra vires the province’s legislative powers as an impermissible intrusion on matters of exclusive federal jurisdiction.

We will report further as the law of copyright develops in this area.