Geophysical Service Incorporated v. EnCana Corporation, et al.
(Alberta) (Civil) (By Leave)
Intellectual property - Copyright - Intellectual property — Copyright — Court of Appeal concluded that, outside a statutory protection period, the Canada Petroleum Resources Act, R.S.C. 1985, c. 36 (2nd Supp.), s. 101, permits regulatory boards to disclose seismic data protected by copyright to the public and to permit the public to copy that data — Whether the Court of Appeal reached the appropriate interpretation and balancing of the Copyright Act, R.S.C. 1985, c. C-42, and the regulatory regime governing seismic surveys in Canada — If they conflict, whether the Court should adopt an interpretation that allows for breaching copyright without compensation — Whether the court should endorse the transformation of a regulatory regime into a proprietary acquisition regime.
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Geophysical Service Incorporated (“GSI”) conducts offshore seismic surveys in the Canadian Atlantic and Arctic. It licenses the seismic data it acquires to third parties under strict conditions for a fee. Copying that information is not permitted by any method or in any form. In order to obtain the seismic data, GSI must obtain operating licenses and authorizations from regulators, including the National Energy Board, the Canada-Newfoundland and Labrador Offshore Petroleum Board, and the Canada-Nova Scotia Offshore Petroleum Board (collectively, the “Boards”) in order to access land and marine areas to conduct seismic surveys. GSI must then submit reports including the acquired seismic data to the Boards in various formats (digital, paper or mylar). The regulatory regime gives GSI exclusive rights to control and disseminate that data during certain privileged periods, but once those privileged periods expire, the Boards permit third parties to access and copy some of the submitted seismic data.
GSI sued the Boards, several oil and gas companies, commercial copying companies and data resellers, alleging breach of copyright, conversion, breach of confidence, and contractual interference. The case management judge directed the trial judge to decide certain questions. The trial judge found that copyright could exist in raw or processed seismic data, but that the regulatory regime was a complete answer to the claims. Most importantly, she found that the specific provisions in the Canada Petroleum Resources Act supplanted the more general provisions in the Copyright Act. The Court of Appeal dismissed GSI’s appeal.
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