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Crown’s ownership of copyright sinks land surveyor’s class action

The Superior Court of Justice has dismissed a long-running class action by Ontario’s land surveyors against Teranet, the private company that manages Ontario’s electronic land registry system (ELRS). Both parties moved for summary judgment on seven common issues, however, the action was dismissed based on the outcome of just one: whether the copyright in question belonged to the province rather than the surveyor class members.

Teranet provides on-line copies of registered plans of survey to members of the public for a fee but pays no fees or royalties to the land surveyors who prepared the plans of survey. The plaintiff alleged that Teranet was in breach of copyright and was unlawfully appropriating the benefit of the class members’ professional land survey work.

Prior to the ELRS, land surveyors registered or deposited paper plans of survey at the government land registry office. The office provided copies to members of the public or other surveyors for a fee and no royalties were paid to the surveyors.

The Court found that the Registry Act and Land Titles Act made clear that, when plans of survey are registered or deposited at the land registry office, the province takes ownership of the property in the works, including the right to make copies. Moreover, the Association of Ontario Land Surveyors’ own bulletins routinely noted that surveyors did not retain copyright in the plans of survey once registered or deposited at the land registry office. In short, “under the paper-based land registration system, land surveyors understood and accepted… that the province had the right to copy and sell the plans of survey once they were registered or deposited at the land registry office.”

The class action arose after the government entered a public-private partnership with Teranet to convert to an electronic (on-line) title system. The complaint was not about the ELRS itself, but that the province out-sourced the operation and management of the on-line system to a for-profit company authorized to make and sell copies for a fee “at the expense of the class members.”

Since ownership of the copyright transfers to the province upon registration or deposit in the land registry office, from that point the province has “control” of the plans which are then published “by or under the direction or control of Her Majesty.” Establishing an electronic system did not change this. The copyright thus belongs to the province pursuant to 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…

Both sides agreed that this was the determinative issue and, accordingly, “there is no copyright infringement and that is the end of the class action,” which was dismissed.

A copy of the judgment can be found here.