Copyright in documents recorded / registered in land titles officesKeatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43 (CanLII)
When you obtain a document from a Manitoba Land Titles Office / Manitoba Registry Office (a "Document"), you pay a fee. Such payment is long accepted by lawyers and by others who, for their own purposes, choose to obtain Documents directly from a Land Titles Office. The quid pro quo for such charge is in part related to the costs incurred in operating the land titles system, including the receipt, processing, storage and regurgitation of Documents and other information "officially" provided to the system. It is also in part based on the fact that the operator of the land titles system either holds or operates under the copyright which attaches to Documents - or at least to certain Documents.
The types of documents obtainable from a Land Titles Office may be broken down - generally - into these categories:
- Statements, declarations or confirmations of certain of the information held by the system pertaining to particular types of interests in land, the most common being ownership ("Land Ownership Confirmation"). The most frequently requested form of Land Ownership Confirmation is the document currently called a "Status of Title Certificate". It not only contains a current (as at the date of its issuance) summary of (certain of) the system's recorded / held information pertaining to the ownership of a particular parcel of land, but additionally comprises a certification by the system that such information is substantially correct.
- Copies of documents which, in one manner or another, affect dealings with land interests ("Conveyancing Documents"). Examples of frequently obtained Conveyancing Documents are mortgages, caveats, easements, transfers and discharges.
- Plans prepared by properly licenced surveyors which, when recorded / registered in a Land Titles Office, become "official" determinants used by lawyers, courts and other officials to ascertain the precise boundaries and the extent of parcels of land ("Ownership Delineation Plans"). A plan of subdivision delineating two or more parcels of land would be the most frequently encountered / dealt with Land Ownership Plan.
From time to time, questions arise as to who holds the copyright for various types of Documents and if so, who is entitled to enjoy the various rights (subject to the legal obligations) which flow from copyright ownership. The recently decided Supreme Court of Canada decision in Keatley Surveying Ltd. and Teranet Inc., 2019 SCC 43, judgment issued September 26, 2019 (hereinafter the "Keatley Case") dealt with this issue. An Ownership Delineation Plan was prepared by a "private" surveyor and then recorded in a land registry office. The land registry office and the land titles system were owned by the Province of Ontario (the "Province") and by way of an arrangement between the Province and Teranet Inc., was operated by Teranet Inc. acting in part, as an agent of the Province. Part of the arrangement between Ontario and Teranet involved Ontario providing a licence to Teranet to make use of the copyright which Ontario claimed in the Land Ownership Plan. The Province's (and Teranet's) position was that by section 12 of the Copyright Act (Canada) (the "Act"), the Province owned the Land Ownership Plan's copyright and that it had properly licenced that copyright to Teranet. Keatley argued that it should not lose its copyright merely because the plan was recorded in the land titles system. Its position was that, although section 12 of the Act did enable the Province to, in effect, expropriate a surveyor's copyright in plans which he / she had prepared and recorded without compensation, claiming copyright in this situation was an "overreach", and that the intent of the drafters of the Act (in 1921) was not to give such broad expropriation rights to the Province (or the federal Crown).
The Supreme Court agreed that section 12 was not intended to give unrestricted freedom to the Crown to expropriate copyright (without compensation). However, it was not an "overreach" to conclude that, on a proper application of section 12, copyright in Land Ownership Plans did, upon recording in the Land Titles system, completely pass to the Province. Given the Province's interest in ensuring the integrity of Land Ownership Plans (once officially recorded in the system) and the degree to which the Province - through legislation and regulations - governed the manner in which Land Ownership Plans were to be prepared, and perhaps most significantly, given the public interest in maintaining assurance that recorded Land Ownership Plans would continue to officially and unequivocally determine the boundaries between parcels of land, a proper reading of section 12 was that copyright did pass from the surveyor to the Province.
It is necessary to take a "deep dive" into the meaning of section 12 and then apply the meaning(s) thereby garnered to the particular situation under consideration in order to properly answer a question regarding the Province's entitlement to copyright in any particular recorded Document. The Court held that the meaning of section 12 was that where:
- a "work" has been prepared under the direction of or control of Her Majesty; or
- published by or under the direction of or control of Her Majesty;
copyright in the "work" passes to the Crown, in effect, upon the occurrence of such preparation or the occurrence of such publication.
The Court further held that:
- A "work" is prepared by the Crown when "… its agent or employee brings the work into existence for and on behalf of the Crown in the course of his or her employment or when the Crown essentially determines whether and how a work will be made, even if the work is produced by an independent contractor"
- Whether or not a work is published with sufficient governmental direction or control "… necessitates and inquiry into the Crown's interest in the work at the time of (and often, after) publication". Where the following-described situations / circumstances can be proven to exist, it will be held that the work was so published, namely, inter alia, the presence of a statutory scheme transferring property rights in the work to the Crown, a statutory scheme which places strict controls on the form and content of the work, where the Crown physically possesses the work, where exclusive control is given to the government to modify the work and where there is a necessity for the Crown to make the work available to the public. Presumably, if none - or only a very few - of the aforementioned situations / circumstances exist, then a work prepared by an independent contractor (ie, not a government employee or agent) may be held to have its copyright maintained in the author. This may be so even though the work is "published" by or at the direction of the Crown.
Where an Ownership Delineation Plan, typically prepared by a private surveyor on engagement by a private person or business, has been placed the plan on record at a land / property registry, copyright passes to the Crown. No one in the Keatley Case challenged the Crown's right to licence that copyright to Teranet as part of Teranet's contract with the Crown to operate the property registry. While some may object to this decision on principle (ie, that it is inequitable for the surveyor to lose its copyright without compensation in this manner), this is - absent a change of mind by the Supreme Court or an amendment to the statute - a ruling we must accept.
Note in particular in the Keatley Case:
- The Crown has established rules (some statutory, some regulatory and some merely policy or protocol rulings) in directing surveyors what information must be included in plans and how that information is to be presented;
- Once on record in the property registry, the content of plans cannot be altered without formal statutory procedures and / or guidelines; and
- It was pointed out that third parties rely on the accuracy and currency of the information in recorded plans for the purpose of determining the extent of property rights.
Common sense suggests that without the above-mentioned "controls" and limitations, fraud and ultimately, chaos, would occur - or at least that it would be more likely to occur.
Given the Court's reasoning in the Keatley Case, it is interesting to speculate as to whether or not other Documents, once recorded in a property registry, would, upon such registration, have their copyright pass form the originator of any such Document to the Crown? What about Land Ownership Confirmations and Conveyancing Documents? Consider the following:
- Land Ownership Confirmations certainly appear to meet the above-described criteria and they are, in any event, wholly created by the property registry. Thus, assuming that a Land Ownership Confirmation is a "work", copyright in it almost certainly belongs to the Crown.
- Conveyancing Documents are - like most Ownership Delineation Plans, prepared by privately engaged lawyers. They too appear to meet the above-described criteria provided that they are legally "works". However, if I as a practicing lawyer obtain a copy of a mortgage previously registered in the property registry, neither I nor (I believe) most other practitioners would consider me to be breaching copyright by making further copies of same and distributing same to interested - or potentially interested - parties. Perhaps this question requires further clarification from the Courts.
It is also interesting to speculate on whether or not the Crown has copyright in information produced by the Personal Property Registry. This may have to be clarified by the Courts in the future.