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COPYRIGHT - Protected subject matter - Artistic works - Paintings, drawings, plans, maps, charts - Ownership - Crown - Industrial designs

Tuesday, October 10, 2017 @ 8:45 AM  

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Appeal by the plaintiff, Keatley Surveying, from summary judgment dismissing its class action against the defendant, Teranet. In 2007, the plaintiff brought a proposed class action on behalf of land surveyors who registered or deposited survey plans in the provincial land registry offices. The defendant operated the electronic land registry system (ELRS). The plaintiff alleged the defendant infringed surveyors' copyright by digitizing, storing, and copying the plans of survey created by the surveyors and registered or deposited in the ELRS. The action was certified as a class proceeding and each party moved for summary judgment. The motion judge's ruling on the second common issue was determinative of the plaintiff's action. The judge held that copyright in the plans of survey registered or deposited under the ELRS belonged to the Province of Ontario, and not to the surveyor who created the plan. The plaintiff's action was accordingly dismissed. The plaintiff appealed.

HELD: Appeal dismissed. The motion judge appropriately concluded that copyright in the registered or deposited plans of survey belonged to the Province. The statutory land registration regime gave the Crown complete control over registered or deposited plans of survey and complete control over the publication of those plans of survey within the meaning of the Copyright Act. As land surveyors were under no obligation to register or deposit plans of survey under the ELRS, and could prevent any plan from being registered or deposited, there was no validity to the plaintiff's contention that the defendant had expropriated the copyright of land surveyors whose plans were registered or deposited in the ELRS. No constitutional vires problem arose, as the provincial legislation appropriately informed the copyright inquiry.

Keatley Surveying Ltd. v. Teranet Inc., [2017] O.J. No. 5023, Ontario Court of Appeal, D.H. Doherty, D.M. Brown and B. Miller JJ.A., September 28, 2017. Digest No. TLD-October92017003