Keatley Surveying v. Teranet: It’s Time for a Blanket Statutory Obligation Exception

In Keatley Surveying, the small subject of whether or not a statutory regime of land titles registration involving the submitting and dissemination of land surveys was addressed by means of a a lot bigger query of copyright possession of these land surveys. Possession within the copyright of land surveys turned the idea for sustaining the integrity of a land titles system when it might have been addressed by means of the statutory obligation exception within the Copyright Act.

Teranet is a statutorily empowered third celebration supervisor of Ontario’s land registry system. Land surveys registered on title are scanned and digitized, then made accessible to the general public on cost of a statutorily prescribed charge. These surveys are accessed for a number of functions together with for use in making ready different land surveys. The Ontario Land Titles laws deems filed surveys to be Crown property and prohibits the usage of phrases or symbols denoting copyright possession.

Keatley Surveying, on behalf of a land surveyors class motion, claimed that Teranet infringed copyright by “digitizing, storing and copying the plans of survey” deposited within the digital land registry system.

The authorized subject in Keatley Surveying was whether or not land surveys (copyrighted works underneath the Act) filed on title had been owned by the survey’s writer or the Crown. Part 12 offers copyright to the Crown “…the place any work is, or has been, ready or revealed by or underneath the course or management of [the Crown]…” (emphasis added). Two concurring opinion wrestled with this wording.

The bulk judgement, authored by Abella J., targeted on whether or not the federal government workouts enough course or management over the preparation or publication of the work. Abella J opined that there was enough course or management noting that the statutory regime offers full management over the method of publication to the federal government. Those that opt-in to registering their survey plans into the system lose their copyright to the Crown.

This isn’t the primary time that a copyright proprietor has sued for infringement underneath a statutory regime authorizing the copying and dissemination of a work (see Geophysical Service v. Encana mentioned on slaw right here). The authorized decision in that case was additionally awkward.

These sorts of circumstances are higher resolved by means of the creation (or no less than extra sturdy interpretation) of an exception to copyright infringement. At current, the Copyright Act creates an exception to copyright infringement to satisfy statutory obligations although it’s directed at a closed listing:

32.1 (1) It’s not an infringement of copyright for any particular person

(a) to reveal, pursuant to the Entry to Info Act, a report inside the which means of that Act, or to reveal, pursuant to any like Act of the legislature of a province, like materials;

(b) to reveal, pursuant to the Privateness Act, private data inside the which means of that Act, or to reveal, pursuant to any like Act of the legislature of a province, like data;

(c) to make a copy of an object referred to in part 14 of the Cultural Property Export and Import Act, for deposit in an establishment pursuant to a course underneath that part; and

(d) to make a fixation or copy of a work or different subject-matter with a view to adjust to the Broadcasting Act or any rule, regulation or different instrument made underneath it.

(2) Nothing in paragraph (1)(a) or (b) authorizes a particular person to whom a report or data is disclosed to do something that, by this Act, solely the proprietor of the copyright within the report, private data or like data, because the case could also be, has a proper to do.

Courts might interpret this provision as being illustrative, relatively than exhaustive, of excepted statutory obligations. Judges have been recognized to create exceptions not explicitly said in a statute to keep away from absurd outcomes. And who would say that creating a copy of a survey, or disclosing seismic knowledge, required or approved by a statute ought to be topic to copyright legal responsibility particularly when related obligations aren’t? Can we actually say the legislative supposed such a consequence?

Higher but, the enumerated listing underneath subsection (1) could possibly be eliminated by modification. As a substitute, a basic provision might substitute it clarifying that it’s not an infringement of copyright to repeat or disseminate a work, or to request or obtain such a copy by means of dissemination, pursuant to a statutory regime that instantly or not directly authorizes such copying or dissemination.

The limitation in subsection (2) ought to stay, thereby facilitating statutory copying and dissemination with out in any other case derogating from the writer’s copyright possession pursuits.

Courts have overreached on the copyright possession subject, or created authorized fictions, to realize the supposed coverage objectives of guaranteeing that the general public curiosity in copying and disseminating sure sorts of knowledge is just not encumbered by copyright legal responsibility.

Keatley Surveying v. Teranet: It’s Time for a Blanket Statutory Obligation Exception

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