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Shakin’ all over – Copyright Claim for Blurry Seismic Data Survives Summary Judgment

In Geophysical Services Incorporated v. Atrim Energy, the Court of Queen’s Bench of Alberta considered Atrim’s motion for a summary dismissal of GSI’s copyright infringement claim. GSI is in the business of producing seismic data to assist exploration. Antrim initially approached GSI about accessing the GSI’s seismic data but did not proceed given the cost of the license proposed by GSI.

Antrim then obtained photocopies of seismic data from the Canada Newfoundland and Labrador Offshore Petroleum Board, including copies of two lines of seismic data that had been produced by GSI. According to Antrim, the copies obtained were blurry and of such poor quality that Antrim filed the copies in a storage cabinet and forgot about them. Upon learning that Antrim had obtained copies of GSI’s data from CNLOPB, GSI demanded that Antrim licence the data it had received.  When Antrim refused, GSI started a copyright infringement action seeking $392,000 in damages, or alternatively the $150,000 licensing fee it has initially offered .

For the purpose of Antrim’s summary dismissal motion, the Court assumed, but did not decide, whether GSI held copyright in the data. The Court rejected Antrim’s argument that the data was obtained was statutorily exempted from infringement by section 32 of the Access to Information Act, holding that there was no evidence that Antrim had ever made an ATIA request.

Antrim also argued that the copies that it received were of such poor quality that they could not be used for its intended purpose and therefore could not amount to infringement. Master Hanebury, following Robinson v. Films Cinar, held that it is the unauthorized copying that constitutes infringement and the quality of the copies was not determinative:

[60]           In short, utilizing the tests outlined in Fox, and taking into consideration the fact that all of the lines of data were copied, albeit not clearly, I arrive at the same conclusion: I am not satisfied that Antrim’s defence that it did not infringe copyright because the copies it made were blurry has such a likelihood of success that GSI’s claim should be dismissed.

Master Hanesbury also rejected Antrim’s argument that GSI had suffered not damaged because the copies were not relied upon by Antrim. Master Hanesbury further refused to limit the damages to the $20,000 statutory damages provided by section 38.1 of the Copyright Act.

Master Hanesbury accordingly dismissed Antrim’s motion for summary dismissal and remitted the matter to trial.

A copy of Master Hanesbury’s reasons may be found here.