Canada: Copyright In Seismic Data

Last Updated: December 7 2017
Article by Martin P.J. Kratz

The seismic industry is of considerable significance to Canada's oil and gas business. In Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230 the Alberta Court of Queen's Bench had an opportunity to assess both claims to copyright in seismic data and the power of certain regulatory boards to release copies of such data to the public.

The Court of Queen's Bench found seismic data was protectable under copyright law but also found that the conduct of the applicable boards under the legislative schemes authorized their conduct and legitimized their dealing with the copyright works. The decision pertaining to the Regulatory Regime was subsequently appealed to the Alberta Court of Appeal, Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125. The appeal by GSI to the Supreme Court was denied so the Alberta Court of Appeal decision is the final word on these points.

The detailed analysis of both the copyright aspect of the Queen's Bench decision and the Appeal Court's decision regarding the Regulatory Regime should be of interest to the oil and gas industry.

Introduction to Seismic

Seismic exploration works, in simplified terms, by the creation of seismic waves through the earth's surface and assessing how those waves engage various geological formations. Very sophisticated technology has been developed in order to seek to extract more meaningful data from seismic analysis. The term seismic data is not sufficiently nuanced to cover the different types of data generated in this industry. A preliminary and simplified analysis is that, at a first level, certain raw data is collected in response to the seismic waves moving through a geological formation. A second level of analysis is to consider the data as it is processed by sophisticated techniques and technology after being collected. As well, considerable data is generated identifying locations of seismic events, map and navigation data and interpretive comments on seismic results. Very sophisticated tools are used to visualize geologic formations in two or three dimensions.

The challenge for the Court was to consider this factual setting in the context of Canada's copyright law.

Introduction to the Boards

In order to promote exploration especially in Canada's Arctic and offshore regions a number of boards have been set up under legislation, including the National Energy Board, the Canada Newfoundland and Labrador Offshore Petroleum Board and the Canada Nova Scotia Offshore Petroleum Board (the boards). The boards grant licences to those who conduct seismic operations and require a deposit of the seismic data as a condition of the licence. The deposit arrangements provided the seismic operators with a confidentiality period after which copies of the seismic data are made available to the public by the boards.

The issue in this case was to assess that regime in the context of a copyright claim by an active seismic operator, Geophysical Services Incorporated (GSI).

The Action and Common Issues

GSI is a Canadian company that conducted offshore marine seismic surveys in the Canadian Atlantic and Arctic and grants licences of the seismic data to oil and gas companies mainly for exploration purposes. GSI brought 25 actions against the various boards and numerous oil and gas exploration companies, rival seismic companies and others. The actions were brought together in this case to address two common issues:

  1. Is there a copyright in the seismic data?
  2. What is the effect of the legislative regimes on the copyright infringement claim?

The position of the plaintiff is that it has a copyright in the seismic data and that the conduct of the defendants infringed that copyright.

The defendant's position is that GSI does not have a copyright in the materials deposited with the boards or at all. They also argued that to conduct seismic surveys on the Canadian frontier, and its use thereafter, including the deposit of the material, the term of confidentiality and public access to it, is strictly regulated by legislation which governs and supersedes any property rights that GSI may have (the Regulatory Regime).

The Time Frames in Question

Madam Justice Eidsvik of the Court of Queen's Bench commenced the analysis noting that the issues of the time limit of protection was a core issue in the dispute. The Regulatory Regime protects the confidentiality of the seismic material deposited for a period which may range from 5 to 15 years. Under copyright law she noted that the term of protection may subsist for 50 or more years.

The Copyright Analysis

Justice Eidsvik commenced the copyright analysis to seek to identify if the seismic data may be "works" for copyright law purposes. GSI argued that the seismic data is original and qualifies as a work "in that it is created by the involvement of human skill and judgment with the aid of computers". GSI claimed the seismic data is a "literary and/or artistic 'production' in the scientific domain" and noted the data is fixed in many tangible forms. The defendants claim that the data are computer generated and not the product of skill and judgment by human authors.

Justice Eidsvik considered the different types of seismic material claimed to be subject of copyright. The types of seismic data at issue included:

  • raw seismic field data, or raw seismic, magnetic, and gravity data;
  • seismic related navigation data;
  • processed and reprocessed seismic data;
  • selections, arrangement and compilations of raw, processed and reprocessed seismic data;
  • productions and reproductions of seismic data in various forms and media including physical, electronic, magnetic and digital works;
  • interpretations, derivations and translations of the seismic data; and
  • related seismic data materials.

Justice Eidsvik began her analysis relying on section 34.1 of the Copyright Act (Canada) which provides a rebuttable presumption that copyright subsists in a work where the defendant puts that existence in issue.

The key case on originality in Canada is CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13, where the Chief Justice, speaking for the court, noted that Canada's position on whether a work falls between the earlier standard which would recognize mere labour or effort to create the right and the higher U.S. creativity standard. She stated:

For a work to be "original" within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce "another" work would be too trivial to merit copyright protection as an "original" work. [Emphasis by the Court]

The evidence noted that the seismic data should also be considered in a further context. This case was about non-proprietary data, namely, that is data shot on speculation by the seismic operator. By contrast, proprietary data arises when a seismic operator is engaged by an exploration company where the expert geophysicists and other scientists of the exploration company might direct decisions about the acquisition and processing of the seismic data so that it could be their "skill and judgment" that is being called upon.

With the above context, the Court considered the types of data.

After examining the various decisions made in the set-up of a seismic shoot, the Court found that "the raw seismic field data and written reports are a literary work or a compilation of a literary work." Similarly, she found seismic sections to be an artistic work, noting "seismic sections, i.e., the squiggly or zebra lines, fit within the definition of an artistic work, similar to a map, plan or chart, or a compilation of an artistic work since the product is the result of selection or arrangement of the data, or sound recordings, from the geology of the subsurface."

The Court noted that the data becomes a "work" when it is compiled. She noted, "One ping from a hydrophone would not suffice; it is the collection, arrangement, distillation and compilation that creates the work—both at the raw data level and then at the more refined processed data level."

Having found the applicable data were works, the Court considered if they were original. On the raw data she found that raw data was original for copyright purposes stating, "Judgment is evident in the production of field data through the multitude of decisions made by the seismic crew. The crew must have the 'capacity for discernment or ability to form an opinion or evaluation by comparing different possible options.'... the field data is analysed as it is being acquired and checked for its quality. To the extent that there are problems that could affect the quality beyond certain parameters, the collection process may have to be restarted with different parameters. Only skilled experts are able to make these decisions."

Similarly, on the processed data the Court readily found this was original as "the processors exercise skill and judgment in the decisions they make to create a usable product from the field data. The raw data is not simply pumped into a computer and a useful product comes out. The evidence is clear that the processed product can be quite different depending on the skill of the processor and that exploration companies have their favourite processors who create the best quality product for their purposes."

The Court rejected the defendant's arguments including their effort to import the U.S. "idea expression" principle into Canadian law and relying on the tests for originality in CCH. The Court also rejected the defendant's argument that there was no human input. Rejecting cases dealing with highly automated processes finding that "seismic data produced through this exercise of skill and judgment is 'tailored and unique' to the author."

On the issue of authorship and ownership, the Court noted, "the author is the one who 'clothes the work with form,' or 'expresses the idea,' or uses their skill to fix the work in tangible form. So in this situation, the creator or 'human' author of the field data is likely the head of the seismic crew on the ship (the 'party chief') and the 'human' author of the processed data is the person in charge of the processing (who, early on, was called 'the computer'). It is he who will sign the seismic section"... "For ownership purposes, the author will be GSI, since s 13 of the Copyright Act provides that the employer will be the owner when an employee is retained to do the work."

The Court similarly rejected a series of other technical attacks by the defendants such as that the work was trivial and purely mechanical, or were facts or ideas, or were merely utilitarian expressions.

Importantly, the Court also declined to follow obiter comments on the existence of copyright in seismic data in Geophysical Service Inc v Canada-Nova-Scotia Offshore Petroleum Board, 2014 FC 450, as there was very limited evidence before that Court.

On the copyright issue, the plaintiffs were successful. This part of the decision was not appealed and helps to create certainty about the existence of copyright in certain types of seismic data for the exploration companies, the seismic industry and those who engage in transactions involving seismic data.

The Regulatory Regime

Having decided there was a copyright in the seismic data the Court Queen's Bench then considered the impact of the Regulatory Regime on any liability of the defendants in their dealings with GSI's seismic data.

GSI's view was that the Regulatory Regimes should be interpreted in a manner that promotes recognition of the copyright and not be interpreted as infringing on copyright. The defendants argued that the Regulatory Regime confers a statutory authority on the boards to act as they did with the seismic data and represent a balance between the protection of the seismic operator's economic interest with the confidentiality period and the public policy objective of "stimulating natural resource exploration and development by making such information publicly available."

The Court considered the Canada Petroleum Resources Act, RSC 1985, c 36 (2nd Supp) (CPRA) and found that it "allows for disclosure without restriction after a defined period of time. It is a complete and specific code that applies to all oil and gas property in the offshore and frontier lands, including seismic data. Its provisions supplant any more general pieces of legislation, such as the Copyright Act... to the extent that they conflict."

While the CPRA does not use the express words permitting the boards to "copy" the seismic data that the disclosed, the Court found that the only reasonable interpretation of the provisions that permit disclosure of geophysical work performed on the frontier lands was to give the boards "the statutory authority to the regulatory boards to disclose material without restriction and without the consent of the owner of such material, once the confidentiality period has expired."

The plaintiff also argued that the Copyright Act has an exemption permitting copying pursuant to the Access to Information Act and that regime (including its protections and exemptions for trade secrets and confidential information) should be the regime by which disclosure requests should be processed. The Court found that the Access to Information Act was another more general legislative scheme whose procedures were supplanted by the more specific CPRA.

The Court went on to assess if the boards who disclosed copies of the GSI seismic data and the recipients who received the copies of the data had liability under copyright law.

The Court found that the Regulatory Regime provided a balance between the public and private rights stating "The Regulatory Regime preserves the rights of seismic operators until after the expiry of the privilege period, thereby achieving an internal balance between allowing for commercialization of the information and the public interest in the wider dissemination of that information." The Court found that the "CPRA creates a separate oil and gas regulatory regime wherein the creation and disclosure of exploration data on Canadian territory is strictly regulated" and therefore acts as an exception to the rights of the copyright owner to control the dissemination of its seismic data.

The Appeal on the Regulatory Regime

GSI appealed to the Alberta Court of Appeal on the Regulatory Regime issue.

For the appeal, the parties did not dispute that section 101 of the CPRA was the operative provision governing disclosure by the National Energy Board. GSI's main argument was the proper interpretation of section 101 and whether the CPRA overrides the Copyright Act.

The Court of Appeal assessed the parties' arguments and applied the modern approach to interpretation of the CPRA. The Court of Appeal found "that the findings of fact and statutory interpretation reached by the Trial Court are rational and correct, and otherwise reveal no error warranting appellate intervention."

On the key issue that section 101 of the CPRA does not refer to copying, only disclosure, the Court of Appeal held that "the Regulatory Regime confers on the Boards the unfettered and unconditional legal right after expiry of the privilege period to disseminate, in their sole discretion as they see fit, all materials acquired from GSI and collected under the Regulatory Regime. The correct interpretation of "disclose" also confers on these Boards the legal right to grant to others both access and opportunity to copy and re-copy all materials acquired from GSI and collected under the Regulatory Regime."

Ultimately the Court of Appeal dismissed the appeal finding that the trial judge had made no errors of law in the trial decision. The appeal by GSI to the Supreme Court was denied so the Alberta Court of Appeal decision is the final word on these points.

The decision is important in two respects. The decision affirms the existence of copyright protection for the many types of seismic data considered and this provides a framework within the rights of those who shoot, process, use and disseminate seismic data can be assessed. The existence of copyright protection ought to encourage more investment in the creation of valuable seismic data.

The decision is also important in balancing and limiting the rights of copyright holders in seismic data with the public policy favouring orderly dissemination of seismic data under the specific Regulatory Regime thereby encouraging exploitation and development of applicable frontier and offshore resources.

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 Mondaq.com.

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

Authors
Martin P.J. Kratz
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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