Most readers will be aware that homeowners in Ontario are able to obtain copies of land surveys from the electronic land registry system (ELRS) operated by Teranet.
However, you may not have considered the copyright implications of doing so. Are these surveys protected under the Copyright Act? If so, is the copyright owned by the surveyors themselves, or by the Crown?
These were the questions explored in the recent Ontario Court of Appeal case Keatley Surveying Ltd. v. Teranet Inc..
Teranet and the Ontario government entered into a joint project in 1991, the result being the current ELRS, which was completed in 2010. Individuals can access the system remotely to obtain digital copies of plans of surveys, for a set fee. No part of this fee is passed on to the surveyor.
This case goes back to 2007, when Keatley Surveying Ltd. brought a proposed class action on behalf of all land surveyors in Ontario against Teranet. Keatley argue that Teranet was infringing the copyright of the surveyors by digitizing, storing, and copying the plans.
The case was dismissed on summary judgment by the Superior Court of Justice in May 2016, with Justice Belobaba arguing that copyright in the plans of surveys registered or deposited under the ELRS belonged to the Province of Ontario – that is, the Crown – and not to the surveyors who created the plans.
As evidence of this, he referred to both Ontario’s Registry Act and Land Titles Act, the latter of which states in section 165(1): “Every registered instrument and deposited or registered plan is the property of the Crown and […] shall be retained in the custody of the land registrar in his or her office”.
Keatley appealed this decision to the Ontario Court of Appeal.
Direction or control
In this decision, Justice Doherty confirmed that plans of survey are in fact “artistic works” as defined in section 2 of the Copyright Act, and also that the land surveyor is the “author” in accordance with section 5 of the Act. Therefore, the plans of survey are protected by copyright.
The second issue was who the copyright belonged to: the Province of Ontario or the land surveyor?
He highlighted this passage from section 12 of the Copyright Act:
“…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.”
After exploring the land registry process and the provincial statutes, which effectively transfer rights to the Crown, he concluded that plans of survey are in fact works that are published under the “direction or control” of the Crown. Copyright, therefore, belongs to the Crown.
He upheld the lower court’s decision and dismissed the appeal.
Last month, Keatley Surveying Ltd. were granted leave to appeal to the Supreme Court of Canada, so it appears the top court will have the final word on this issue.
Justice Doherty did note in the decision that it is not mandatory for land surveyors to register or deposit plans of survey under the ELRS. If they do not register a plan, the copyright remains with the surveyor. And to guarantee this right, a surveyor can do a number of things, including placing a claim of copyright on the plan, which will make it unacceptable for registration with the ELRS.
It had been noted that this case is the tip of the iceberg when it comes to copyrightable documents filed with government agencies. We wait with interest to see what the Supreme Court has to say about this issue.
For more information about surveys or the land registry system, contact our Real Estate and Development Group. And if you have questions regarding copyright, contact our Intellectual Property Group.