In last week's Keatley Surveying decision,1 the Supreme Court considered the test that should determine when the Crown will acquire copyright in third-party works that are published under government authority. This is the first time that Crown copyright has been litigated in Canada before the Supreme Court of Canada, and one of only a handful of cases worldwide that consider the issue.2
As a result, Keatley Surveying is a landmark case for businesses and individuals who submit documents to federal and provincial governments (including Crown corporations and even third-party service providers acting at the Crown's behest). It is also of interest for anyone who relies on documents published by the government or public agencies and service providers.
Like all provinces, Ontario operates a public land registry whose purpose is to record and publicize transactions involving real estate.3 Various documents related to these transactions may or must be filed with the land registry, and after filing, members of the public can obtain a copy of the document by paying a small fee.
The system was originally operated by the Ontario government, but following the digitization of the registry in the 1980s and 1990s, many services are now provided by Teranet, a private corporation. Teranet provides these services via a licence agreement with the province, and pursuant to a statutory framework.4
Among the documents that are filed with the land registry (and made available to the public by Teranet) are plans of survey. These surveys are prepared by licensed Ontario surveyors and are a crucial component of the land registry, since they are relied upon to determine the boundaries of land, along with associated property rights. The preparation and filing of surveys with the registry is subject to a detailed list of regulatory requirements, and once filed, the plans are declared to become property of the Ontario government.5
In 2007, Keatley Surveying Inc was lead plaintiff on a class action against Teranet and the government of Ontario for copyright infringement. Keatley Surveying complained that Teranet infringed copyright in the plans of survey prepared by Ontario land surveyors, since these plans were copied and sold to the public without the consent of the surveyors who prepared them.
The class action was certified, only to be met with a motion for summary judgment on several grounds, including that the surveyors did not own copyright in their plans, since...