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OCA dismisses appeal in Teranet class action

|Written By Alex Robinson
OCA dismisses appeal in Teranet class action
Julie Parla says the decision makes it clear that under Canadian copyright law, making copies of a work available to the public through the Electronic Land Registration System constitutes publishing under the Copyright Act.

The Ontario Court of Appeal has upheld a decision dismissing a class action lawsuit against Teranet.

Keatley Surveying Ltd. brought the action in 2007 on behalf of Ontario land surveyors against Teranet, which operates the province’s electronic land registry system. Class members claimed that Teranet had infringed on their copyright by digitizing, storing and copying plans of surveys they created and deposited in the system.

After the lawsuit was certified in 2015, both sides moved for summary judgment. A motion judge dismissed the action last year, finding that land surveyors do not hold copyright in plans registered in the system and that therefore the plaintiff had no claim for breach of copyright.

The Court of Appeal upheld the motion judge’s decision in Keatley Surveying v. Teranet, holding statutory provisions give the Crown complete control over the publication of registered plans of survey.

“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,” Justice David Doherty wrote in the decision.

“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.” 

Julie Parla, one of the lawyers representing Teranet in the appeal, says the decision makes it clear that under Canadian copyright law, making copies of a work available to the public through the Electronic Land Registration System constitutes publishing under the Copyright Act.

She says the decision provides guidance as to how a particular provision of s. 12 of the Copyright Act is meant to function, and that there was little jurisprudence in the area before.

“There is also helpful guidance in the way in which provincial statutes are interrelated to and can support the federal statute such that those two aspects work together with the result in this case,” says Parla, who is a partner at McCarthy Tétrault LLP.

Garth Myers, counsel for the plaintiffs in the appeal, says the Court of Appeal’s conclusion that copyright had been transferred to the Crown as plans of survey are prepared under the Crown’s direction or control is incorrect.

“Crown copyright has traditionally been held to apply only to works created by the Crown,” says Myers, an associate at Koskie Minsky LLP. “By extending it to any work that the Crown makes publicly available, the Crown has been inappropriately given copyright in all sorts of works for which it ought to have no claim.”

Myers adds the Crown cannot give itself copyright to materials by simply publishing them. He says the decision has impact on all works that are filed by private actors and are then subsequently made public by the Crown.

“According to the Court of Appeal, the copyright in these works transfers to the Crown upon the Crown's publication,” he says.

“In consequence, individuals and corporations must be very careful about submitting valuable copyrighted works in circumstances where they might be published by the Crown.”

The Court of Appeal did not bother considering a cross appeal by Teranet as the dismissal of Keatley’s appeal rendered it moot.

Myers declined to answer whether his client intends to seek leave to appeal the decision from the Supreme Court of Canada.

The Ministry of the Attorney General, which intervened in the appeal, did not provide comment before deadline. 


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