Who Owns Survey Plans?

The Ontario Superior Court of Justice has ruled that the copyright in deposited survey plans belongs not to the land surveyor who prepared the plan but to the Province: Keatley Surveying v. Teranet.1 How this might apply in British Columbia or other provinces is not certain, but the reasoning could likely be applied to conclude that, at the very least, there is an implied licence (if not actual ownership) permitting public reproduction of deposited survey plans.

History of the Dispute

In 2001, the Province of Ontario completed the conversion of its paper-based land registration system into an electronic land registry system ("ELRS"). The new ELRS permitted licenced users to access and copy real property records, including plans of survey, upon payment of a licence fee to the private company, Teranet, that manages the system on behalf of the Province.

In 2007, Keatley Surveying brought a class action suit against Teranet on behalf of approximately 350 land surveyors in the province. In 2015, the suit was certified on appeal.2 The surveyors claimed copyright to the plans of survey and alleged that by providing copies to licenced users, Teranet was in violation of that copyright. They were particularly concerned that "a for-profit third party '[has] inserted itself between the government and users of land registration services and reaps substantial profits at the expense of class members'".3

The Decision

Of the seven certified common issues before the Court, the Court's conclusion that copyright in the survey plans belongs to the Province on deposit or registration in the Land Registry Office was determinative. This conclusion relied on the fact that two provincial statutes, the Ontario Registry Act and Land Titles Act, both specified that survey plans submitted or deposited for registration become "the property of the Crown" and required that survey plans be copied, computerized and distributed for a fee.4 In its analysis, the Court acknowledged that transfer of ownership in a document does not necessarily affect ownership in the copyright of a document.5 It went on to look at the other provisions in the applicable legislative and regulatory regime to interpret the language of the legislative regime to mean that the copyright passes to the Province. 6 This is a relatively surprising conclusion that might have been equally addressed under an implied licence analysis.

The Court's interpretation of the Ontario legislative regime left unanswered...