Law Times

Law Times • may 16, 2016 Page 5 www.lawtimesnews.com Surveyors claimed copyright breached Class action against Teranet dismissed BY JENNIFER BROWN Law Times A class action launched by land surveyors who claimed copyright infringement against Teranet — the private sector company that manages Ontar- io's land registry system — has been dismissed. The long-running dispute between surveyors and Ter- anet considered seven com- mon issues but it took only one — whether the copyright of the plans of survey belong to the province — to decide the case in Teranet's favour. "It was a long process with lots of ups and downs, which often happens in litigation, but we are certainly happy we got to the right result, in our view," says Agostino Russo, chief legal officer and corporate secretary with Teranet Inc. The class action in Keatley Surveying v. Teranet was filed in 2007, and it was certified on appeal in 2015. Both sides moved for summary judgment on the common issues and the decision was issued May 6 in Ontario's Superior Court. Keatley Surveying brought the action on behalf of about 350 land surveyors in private practice in Ontario whose sur- veys were scanned and copied into Teranet's digital database and made available online. By copying and selling their plans online, the surveyors claimed Teranet was breaching their copyright and unlawfully ap- propriating for itself the benefit of the class members' profes- sional land survey work. The class members' com- plaint was that a for-profit third party inserted itself between the government and users of land registration services and "reaps substantial profits at the ex- pense of class members." Justice Edward Belobaba de- cided in favour of Teranet and the class action was dismissed on Common Issue 2, which asked whether the copyright in the plans of survey belongs to the Province of Ontario under s. 12 of the Copyright Act, as a result of the registration or de- posit of the plans of survey in the land registry office. Teranet argued the plans of survey in question were "pre- pared or published by or under the direction or control" of the province and therefore copy- right belongs to the Crown. Belobaba said in his view " . . . statutory provisions make clear that when plans of survey are registered or deposited at the land registry office, the province takes ownership of the property in these works which includes the right to make copies." "In my view, s. 12 of the Copyright Act, primarily a 'term of copyright' provision, clarifies Crown copyright but does so 'without prejudice to any rights or privileges of the [provincial] Crown.' Thus, the provincial 'property of the Crown' provi- sions already discussed, and s. 12 of the federal Copyright Act, can live together and operate concurrently," wrote Belobaba. "In any event, the answer to Common Issue 2 is 'yes.'" As both sides agreed that was the determinative issue then there is no copyright infringe- ment "and that is the end of the class action." Bill Northcote, a partner with Shibley Righton LLP, said he was surprised the decision seemed to "gloss over" how the right of Teranet to sell copies was obtained by Teranet. "The case didn't really deal with the equities at all — the own- ers of the copyright, the survey- ors, are having their copyright statutorily transferred without any compensation," he says. The next step could be an ap- peal to the Court of Appeal, but plaintiff lawyer Garth Myers would not comment on whether an appeal will be pursued. "We were successful on a couple of the common issues and we're quite pleased we suc- ceeded on the Crown copyright issue and assignment issue. We got caught on the second part of Common Issue 2, which was determinative. We don't agree with the judge's finding on that issue. The issue that remains is whether the provincial statutes provide for copying that takes away copyright of land survey- ors," said Myers, an associate with Koskie Minsky LLP. Russo says the issue on whether the province has a right to authorize copying was not raised at all throughout the six years of the litigation in any pleadings or arguments until day two of the motion for sum- mary judgment. "Even then it was raised on a fairly limited basis and was resiled from very quickly in the constitutional argument. The legislation that is in place in On- tario has been in place in some form or another for two cen- turies, in terms of the way the registry works, and if there were a valid argument it would have been made earlier in the process and made in some other pro- cess in some other point, and it hasn't been," he says. "We're quite confident though that if it were to be raised we would have an appropriate response." He says that, from a provin- cial and federal perspective, what the province has done under the Land Titles Act and Registry Act is well within its purview in terms of being able to meet its needs of providing a database that is searchable in an efficient manner by the users. The other public policy issue, Northcote says, is that Teranet is a for-profit corporation and it is harder for it to argue that pro- viding the copies is for a "public good." "We don't agree anything changed when Teranet was put into the mix because, ulti- mately, we are a service provider to the province of Ontario and so effectively it's no different than if the province is doing it itself," Russo says, noting the fees charged are statutory fees entirely controlled by govern- ment, and the fees ultimately are paid to government, which pays a fee to Teranet to perform the service. "That was something justice Belobaba was seized with very quickly during the argument — he did not understand that dis- tinction and frankly neither do we," Russo says. Belobaba decided Teranet was entitled to costs, and while it would have sought $200,000, he indicated a reasonable costs award is "probably around $125,000." Myers said there will be sub- missions on costs. LT NEWS Agostino Russo says a decision by Justice Edward Belobaba to dismiss a class action by land surveyors was the 'right result.' 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