Canada: Public & Operator Interests In Offshore Petroleum Resources Data: Where Will The Balance Be Struck? In Geophysical Service Incorporated (GSI) v. Encana Corporation

Last Updated: November 11 2016
Article by Daniel Watt

The balance between the public's interest in accessing offshore petroleum resources data and operators' commercial interests is at the heart of the dispute between Geophysical Service Incorporated (GSI) and Encana Corporation (and a number of others). In April 2016, Alberta's superior court decided just where the law strikes that balance. But that could change: on November 9, 2016, the Alberta Court of Appeal will hear GSI's appeal and the outcome will either end years of uncertainty and litigation or expose the boards and many others to significant liability, threaten public access to seismic and other data and lead to a proliferation of similar litigation – including possible appeals to the Supreme Court of Canada.

Here's the balance the court struck and the implications of that balance being thrown off.


GSI obtained seismic data through offshore marine surveys in the Atlantic and Arctic waters. It licences that seismic data to oil and gas companies primarily for exploration purposes. As a condition of regulatory approval for the surveys and as required by legislation and policy, GSI submitted the seismic data to the National Energy Board (NEB), the Canada-Newfoundland and Labrador Offshore Petroleum Board (CNLOPB) and the Canada-Nova Scotia Petroleum Board (CNSOPB). After the expiry of the confidentiality periods in the legislation, the boards publicly released copies of the data. GSI started 25 lawsuits in Alberta against the NEB, the CNLOPB and numerous exploration, production and other companies claiming (among other things) it owns the copyright in the data, and these parties infringed that copyright by disclosing or copying the date without GSI's consent. GSI started similar lawsuits in Newfoundland and Labrador, Nova Scotia and in the Federal Court. The Alberta Court of Queen's Bench ordered a trial of two issues common to the 25 Alberta cases: whether seismic data can be copyrighted; and the effect of the offshore regulatory regimes on that copyright. On April 21, 2016, the Alberta court decided just where the balance between the public's interest in access to Canada's offshore petroleum resources data, and operators' commercial interests lies:

Seismic data can be protected by copyright. The court agreed that seismic data can be, and normally would, be protected by copyright. The data comprised both raw and processed seismic data and could constitute original "works" within the meaning of the Copyright Act: seismic crews used the necessary "skill and judgment" when designing and conducting surveys and processors of raw data used skill and judgment to create a useable final product.

The offshore petroleum regulatory regime overrides that copyright. The court decided, however, that after the expiration of a statutory confidentiality period, the legislation governing offshore petroleum activities allows the regulatory boards to disclose – and the public to copy – the seismic data:

  • The specific overrides the general. The Canadian offshore petroleum regulatory regime is a "complete and specific code that applies to all oil and gas property in the offshore and frontier lands, including seismic data"; this more specific regime overrides the general Copyright Act and provides a complete defence to GSI's copyright infringement claims.
  • Regulatory regime internally balances the interests – even if it seems unfair. The regulatory regime and determined is intended to allow the public disclosure of seismic data, after a set period of confidentiality, to stimulate exploration and development. The confidentiality period gives seismic operators the opportunity to commercialize the data, accounting for their interest in obtaining a return on the investment required to conduct offshore surveys. The regulatory regime achieves an "internal balance between allowing for commercialization of the information and the public interest in the wider dissemination of that information" – even if that balance might seem "unfair."


This dispute reveals the tension that exists between the public interest in disseminating data about Canada's offshore petroleum resources, and seismic operators' interest in covering its costs and profiting from its enterprise. And the real life impact is already being felt: two months after this decision, the Alberta court followed it in deciding a photocopy company (612469 Alberta Limited) isn't liable for copying GSI data that it accessed from the NEB.

This is the first time a court has confirmed that copyright can subsist in seismic data. However, it merely validates industry supposition and the common practice of including in seismic license agreements an express acknowledgement by the licensee that the seismic data is copyrighted.

The dispute over the regulatory regime's effect, however, is far more significant and an outcome that throws the balance off carries big implications for industry regulators and participants and the public:

A failed appeal. On one hand, if the decision survives this (any any subsequent) appeal, it will confirm the industry understanding that seismic data submitted to the boards can be freely copied after the confidentiality period expires. And this will end years of uncertainty and costly litigation.

A successful appeal. On the other hand, if the decision is overturned, the boards and anyone who has copied GSI's data may be exposed to significant liability: GSI's collective claims approach $1B. It could also lead to a proliferation of similar claims: the current offshore regulatory regime requires the submission, and permits disclosure, of information about all sorts of topics (including exploratory, delineation and development wells exploratory wells, delineation wells, development wells, geological work, engineering or feasibility studies, contingency planning and diving reports). And aside from the money at stake, the ability of the boards, industry and the public to access submitted seismic data for regulatory, exploratory, research or other purposes is threatened and this information won't be available for wider public access and use.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Bennett Jones LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Bennett Jones LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions