Keatley v. Teranet

January 6th, 2019

We reported last month that we’re now headed to a Supreme Court showdown in 2019.  We also noted that there’s a similar case already before that Court.

What case?  Well, it’s the Keatley v. Teranet case.

An Ontario company called Keatley Surveying Ltd., a land surveying company, at some point got miffed that the surveys they were registering with the Provincial Government were made available without charge to the public.  And so they were.  And that’s just fine.

You see, Keatley was paid for their survey work.  I mean, they weren’t surveying recreationally.  And, at law, their land surveys had to be filed with the Government.  The reason?  The legal surveys showing where everything on a bit of land is located are critical for sorting property boundaries, permissible construction areas, and so forth.  The survey then, is the legal definition of what’s on the property and informs of what can be placed there. 

More succinctly, official land surveys are part of the public record.

It’s been this way for well over a century.  Public records give the public a clear and accessible framework for the functioning of society.

It’s just that Keatley wanted to monetize public records.  Sound familiar?

They thought that the piffling payment for conducting a survey could be massively multiplied if everyone who used it had to pay for access.  I mean, if Keatley actually owned the public records themselves, then everyone would have to pay, including governments.  What a lovely racket!

In their first two Court hearings, Keatley lost.  That’s why their case is now before the Supreme Court. 

While Keatley’s case is a matter of public record and Canadian Standards Association’s (CSA’s) case is a matter of public law, there are similarities between the two.  The most interesting similarity (we think, anyway) is that the same governments are involved in both cases but, ta-da!, they’ve taken both sides in them.

For instance, while the Government of Ontario knows all about our defence against CSA (and yes, we’ve been in discussion with them throughout), and while they’ve ignored our invoices and happily intervened to protect CSA, in the Keatley case this same Government filed with Court for intervenor status in order to argue against the position they took with CSA.

You see, governments charge for survey data too, they make money off Keatley’s surveys.  If public records were private property, then governments would have mountains of legal problems, surely, but they’d also have a drop in revenues.

Quoting from the Ontario Government’s Jan 22, 2018 filing; “the Court of Appeal and Superior Court correctly identified and applied relevant principles of statutory interpretation.”  That is, they got it right in Ruling against Keatley. 

With CSA, the law must be private in order to enrich the civil service; whereas in Keatley, public records must be public in order to enrich the civil service.  See how this works? 

Then they argue that any text “prepared or published by or under the direction or control” of the Crown must necessarily be public in nature.  On this basis, and “consistent with this Court’s [related] pronouncements,” the lower Court “accepted the Attorney General’s position that [the Government] holds copyright” in public records.

They conclude by characterising Keatley’s claim to private ownership of public records as being “in any event without merit.”

And again, this time from the Factum of the Ontario Attorney General;  “[when considered] it becomes clear that plans of survey (once registered or deposited) are held and published under the direction and control of the Crown.  As such, Ontario holds copyright to the plans of survey held in its land registry system.”

And yet again;  “…it is evident that plans of survey once registered or deposited are held and published under the direction and control of the Crown.”

Notice that these arguments are identical to our own arguments about public law? 

Alright, let’s move on, this time to the Government of Saskatchewan.  This Government had a few Red Bulls before drafting their Factum.  It’s delightfully hot-headed.  Some snipets;

“The Court of Appeal rightly refused to burden such public registries with new, copyright-derived obligations that run contrary to their intended purpose.

“Importantly, all public registries are, by law, the property of the Government of Saskatchewan, and access to them is to be governed only by the relevant provincial statutes.

“Saskatchewan submits that it is detrimental to the purpose and operation of a provincial property registry system for surveyors (or any other person contributing to and benefitting from the registry system) to be able to assert intellectual property rights against the Crown.”

Then this nugget;  “…it is unthinkable for individual surveyors to monopolize, or threaten to monopolize, access to plans of survey duly approved and registered.”

The Attorney General for Saskatchewan, Theodore Litowski, clearly connected with the implications of the Keatley position.  Note the language used in the following;

“[quoting Justice Fauteux] ‘a Legislature is not presumed to depart from the general system of the law without expressing its intentions to do so with irresistible clearness, failing which the law remains undisturbed.’ It is certainly not ‘irresistibly clear’ that Parliament intended, by The Copyright Act, 1921 or any subsequent revision, to subject maps and plans in provincial property registries to copyright claims by surveyors who duly register their plans with those provincial registries. The status quo between Parliament and the Legislatures on this point is longstanding and cooperative.”

After this dressing down (the above is what stab-and-swagger reads like in Court docs), the Attorney General attacked the Manson / FCA / Industry Canada position that Agencies such as CSA are independent of government, referring to “the fairly overwhelming indicia that Ontario’s statutory scheme dictated that the plans of survey were ‘published by or under the direction or control’ of the Crown.”

This business of “direction or control” is the base argument used by governments and Courts that laws drafted by CSA are not laws in the traditional sense, but only regulations in the sense of convenience.  Well, Saskatchewan doesn’t buy it.

Next, we come to the Government of Canada’s intervenor submission on the Keatley case.  Given this Government’s efforts to protect CSA, their submission ought to be entertaining.  And it is.

Said the Federal Government; “Sec 12 [of the Copyright Act] explicitly preserves Crown rights and privileges with respect to copyright, rather than restricting them to any extent.”

Aint that great?  Friends, this is our argument they’re using.  They claimed the opposite before the FCA earlier this year and even amended their Government website to affirm that these laws are not under Crown copyright.

Then; “Canada’s Copyright Act does contain several specific, limited exceptions for certain governmental functions. However, these exceptions are exactly that – exceptions – and do not of themselves imply an intent to limit (either at the time of their enactment or preceding it) or erase the Crown’s general immunity.”

My head is spinning, there’s so much hypocrisy on the Federal menu.  Friends, the same broad exceptions the Department of Justice has argued don’t exist are the very exceptions that same Department argued in favour of in our case.

Later in the same Federal filing; “The longstanding Crown prerogative to print and publish works arises from the Crown’s responsibility as executive magistrate to make known the law of the land. A broad corollary of this is the obligation to ensure that documents relating to the government of the country should be published and preserved in a proper and correct state.”

And it continues; “The right or ability of the Crown to fulfill its statutory, public duties and responsibilities is not dependent on, or governed by, a contractual relationship with copyright owners (such as an implied waiver, licence or assignment). To find otherwise, could frustrate the purpose or impede the intended operation of a vast array of statutory schemes, at the federal, provincial, territorial and subordinate levels.”

How to respond to this?  Look folks, I was in the Court rooms -plural- to hear the Government lawyers argue at length on the legitimacy of the “license or assignment” of copyright on public law.  This same Government has filed hundreds of pages of argumentation on this subject since 2012.  Indeed, they’ve filed hundreds of semi-legible, not entirely valid “license or assignment” forms covering the “authors” of electrical legislation in defence of their argument for private law. 

We argued that license or assignment isn’t relevant once text is enacted as law.  Why are laws intrinsically public?  Well, said we so eloquently, it’s due to their official, public and legal nature.  And what did the Crown say at Keatley?

“Due to their official, public and legal nature, the Crown (or its agent) must retain ultimate control over their superintendence, publication and availability online. This control cannot remain with individual surveyors acting in a private capacity.”

That’s right, they parroted our argument against Keatley while parroting Keatley’s argument against us.

Swell people, these civil servants.

This sort of thing is usually self-defeating.  It catches up with you.  It only works if the system itself is rigged to offset it.

It is highly likely that the Keatley team will quote extensively from government filings in the CSA case, just as we’ll need to quote from government filings in Keatley.  In this, the various conflicting positions taken by the Government are a wash, and they come out looking dirty.

It’s fascinating really, to ponder what position the Government will take in Court when presented with its various contradictions.  And, if the cases are heard concurrently (a real possibility, given the similarities), what single position could the Government take which could plausibly reconcile the laughably conflicted positions they’ve already filed.

I suppose there’s always the truth.  They could try that.  “Your Honour, the Government of Canada fervently believes, in the interest of convenience and, um, public safety and stuff, that public records should be owned by the Crown when the possibility of profit exists, while public law should not exist in any instance in which civil servants might make a mint by selling it.  So, you know, the law itself is nothing; it’s power and money in the civil service that matters, Your Honour.  As you should know, Your Honour.  As an honourable civil servant yourself, Your Honour.” 

You know, like that.