Canada: Alberta Court Of Queen's Bench Confirms The Regulatory Regime Is A Complete Code That Applies To All Oil And Gas Resources On Offshore And Frontier Lands

On April 20, 2016 the Alberta Court of Queen's Bench released Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230, following a common issues trial1 involving a broad representation of oil and gas industry participants. The Court found that, though copyright can exist in seismic data, the Regulatory Regime2 that applies to all oil and gas resources in the offshore and frontier lands is a complete code that permits the disclosure of seismic data to the public following the applicable privilege (or confidentiality) period.3

On the copyright issue, the Court considered ss. 3(1) and 5(1) of the Copyright Act and concluded that raw seismic data is an original literary compilation work and processed seismic data is both an original literary compilation work and an artistic compilation work in the scientific domain. This finding is significant to industry participants as it applies to the treatment of seismic data obtained from non-exclusive (or speculative) seismic companies. The judgment serves to confirm as valid a contractual term often found in seismic licence agreements that expressly acknowledges that copyright over seismic data is held by the licensor.

The Court further held that the Regulatory Regime creates an exception to copyright protection over seismic data. The Regulatory Regime permits disclosure of seismic data without restriction after a defined period of time. Consistent with the rules of statutory interpretation, the Court held that the specific provisions contained in the Regulatory Regime override the more general provisions contained in the Copyright Act.

The decision affirms the existing understanding in the oil and gas industry, namely, that once the privilege period expires over seismic data governed by the Regulatory Regime the owner no longer has exclusive rights to control the public dissemination of its data.


The Plaintiff, Geophysical Services Inc. (GSI) commenced 25 actions against various oil and gas companies, government entities, and other industry participants (the Defendants) in Alberta. GSI conducted offshore marine surveys in the Canadian Atlantic and Arctic and licensed its seismic data to the Defendants on a non-exclusive basis. In exchange for permission to conduct marine surveys, GSI was required to deposit its seismic data with government entities including the National Energy Board, the Canada Newfoundland and Labrador Offshore Petroleum Board and the Canada Nova Scotia Offshore Petroleum Board (collectively the Boards). The Boards made the GSI seismic data available to the public following the expiry of certain privilege periods as set out in the governing legislation. GSI claims, among other things, that it owns the copyright in the seismic data that was provided to the Boards and that the Defendants breached that copyright by obtaining the seismic data without GSI's consent following the expiration of the applicable privilege period .

The trial was an innovative way to address two common issues arising in 25 actions. The evidence was adduced in affidavits, cross-examination transcripts, and answers to undertakings filed with the Court. Expert reports were exchanged and two of the copyright experts provided viva voce evidence at trial. The Defendants filed joint briefs on the copyright and Regulatory Regime issues. By streamlining the common issues in 25 actions into one trial, the parties (working cooperatively with the Court) avoided taxing the Alberta court system with 25 individual hearings.


Justice Eidsvik of the Alberta Court of Queen's Bench first considered whether copyright could subsist in raw and processed marine seismic data. The expert evidence adduced by the parties was mainly in agreement regarding the process of acquiring and refining seismic data.

The dividing issue involved the steps taken to process the seismic data with the Plaintiff's expert testifying that the geophysicist overseeing the process makes decisions based on his or her skill and judgment and the Defence expert testifying that processors use common industry standards and quality control systems to obtain like outcomes. The Court found for the Plaintiff and concluded that "there is much skill and judgment" involved in the creation of the product. The seismic data entered as evidence in the trial led the Court to conclude that it was "obvious" that few steps taken during the process are alike.

The Court further held that seismic data is "work" pursuant to ss. 5(1) of the Copyright Act. Raw seismic data and written field reports are a literary work or a compilation of a literary work akin to a map, plan or chart based on the collection and arrangement of data that requires the intervention of human skill. Similarly, processed data is not simply the product of a computer algorithm but the result of decisions made by processors of varying individual skill and ability. The Court concluded that raw and processed seismic data are protected pursuant to the Copyright Act.

On the second common issue the Court agreed with the Defendants' position that the Regulatory Regime was a complete response to GSI's copyright infringement claims. The Court canvassed the legislative history of the Regulatory Regime and concluded that the purpose of the statues was to address the tension between: (i) companies seeking a return on investment on funds spent to obtain speculative seismic data; versus, (ii) the governments' desire to disclose information to the public to encourage exploration and development.

The above purpose is achieved through a regulated process that requires: (i) one to acquire permits to obtain seismic data; (ii) that seismic data is submitted to the Boards; and (iii) that data will be publicly disclosed following the expiry of the privilege period without compensation to the seismic data owners. The Court held that as "unfair" as this process seems to GSI, the government was unapologetic for it, and it is not the Court's place to re-write the legislation.

Finally, the Court addressed the conflict between: (i) approximately 50 years of protection provided by the Copyright Act; versus, (ii) the 5 to 15 year protective privilege periods pursuant to the Regulatory Regime. The Court found that the Regulatory Regime is "a complete and specific code" for the "creation and disclosure of exploration data on Canadian territory" and its provisions supplant the more general provisions contained in the Copyright Act to the extent that they conflict.

In a statement that will assure many oil and gas companies involved in GSI litigation across Canada, and internationally, the Court concluded that the Regulatory Regime "establishes that there is nothing unlawful about accessing or copying the information from the Boards."


[1] The common issues before the Court were:

1. Can copyright subsist in seismic material of the kind that are the subject matter of the plaintiff's claims?

2. What is the effect of the Regulatory Regime on the plaintiff's claims?

[2] Canada Petroleum Resources Act, RSC 1985, c 36 (2nd Supp); Canada–Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987, c 3; Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, SC 1988, c 28.

[3] On April 26, 2016, the Plaintiff filed a Notice of Appeal in the Alberta Court of Appeal on the Regulatory Regime common issue.

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.

In association with
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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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