Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230

Court of Queen ’ s Bench of Alberta Citation: Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230 Date: 20160421 Docket: 0701 04061, 1101 15306, 1301 14139, 1301 02933, 1401 00777, 0901 08210, 1201 16166, 1201 05556, 1401 00646, 1401 03449, 1301 09664, 1301 07573, 1201 12278, 1401 00904, 1001 05568, 1301 09665, 0901 08209, 1301 15085, 1401 12230, 1301 07809, 1201 15228, 1401 05316, 1201 11934, 1301 07877, 1301 10045 Registry: Calgary Corrected judgment: A corrigendum was issued on June 30, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment.

Action no. 0701 04061 Between: Geophysical Service Incorporated Plaintiff - and - Encana Corporation Defendant

Action no. 1101 15306 And between: Geophysical Service Incorporated Plaintiff - and - 612469 Alberta Limited Carrying on Business Under The Trade Name CalWest Printing & Reproductions Defendant Action no. 1301 14139 And between: Geophysical Service Incorporated Plaintiff - and - Exxonmobil Canada Ltd. and Imperial Oil Limited Defendants

Action no. 1301 02933 And between: Geophysical Service Incorporated Plaintiff - and - ARCIS Seismic Solutions Corp., Her Majesty The Queen In Right of Canada As Represented By The Attorney General of Canada On Behalf of The National Energy Board, Canada-Newfoundland and Labrador Offshore Petroleum Board and Companies A-Z Defendants Action no. 1401 00777 And between: Geophysical Service Incorporated Plaintiff - and - Exploration Geosciences (UK) Limited, Her Majesty The Queen In Right of Canada As Represented By The Attorney General of Canada On Behalf of The Department of Natural Resources Canada and The National Energy Board and ABC Corporation Ltd. Defendants

Action no. 0901 08210 And between: Geophysical Service Incorporated Plaintiff - and - Lynx Canada Information Systems Ltd., Lynx Canada Information Systems Ltd., Operating as Lynx Information Systems Ltd., The Said Lynx Information System Ltd., Her Majesty The Queen In Right of Canada As Represented by The Attorney General of Canada On Behalf of Public Works and Government Services, The Department of Natural Resources Canada, The National Energy Board and Companies A-Z Defendants - and - Her Majesty The Queen In Right of Canada As Represented by Public Works and Government Services Canada, The Department of Natural Resources Canada and The National Energy Board Third Parties Action no. 1201 16166 And between: Geophysical Service Incorporated Plaintiff - and - Olympic Seismic Ltd., Her Majesty The Queen In Right of Canada As Represented by The Attorney General of Canada On Behalf of The National Energy Board and Companies A-Z Defendants

Action no. 1201 05556 And between: Geophysical Service Incorporated Plaintiff - and - West Canadian Digital Imaging Inc., West Canadian Industries Group Ltd., Her Majesty the Queen In Right at Canada as represented by the Attorney General of Canada on behalf of the National Energy Board and ABC Corporation Ltd. Defendants Action no. 1401 00646 And between: Geophysical Service Incorporated Plaintiff - and - Plains Midstream Canada ULC, BP Canada Energy Group ULC and Companies A-Z Defendants

Action no. 1401 03449 And between: Geophysical Service Incorporated Plaintiff - and - Total S.A., Total E&P Canada Ltd., and The Canada-Newfoundland and Labrador Offshore Petroleum Board Defendants Action no. 1301 09664 And between: Geophysical Service Incorporated Plaintiff - and - Edison S.P.A. and Edison International S.P.A. Defendants

Action no. 1301 07573 And between: Geophysical Service Incorporated Plaintiff - and - Conocophillips Canada Resources Corp., Canadian Natural Resources Limited, MGM Energy Corp., Kogas Canada Ltd., and Companies A-Z Defendants Action no. 1201 12278 And between: Geophysical Service Incorporated Plaintiff - and - Canadian Discovery Ltd. and ABC Corporation Ltd. Defendants Action no. 1401 00904 And between: Geophysical Service Incorporated Plaintiff - and - Antrim Energy Inc. Defendant

Action no. 1001 05568 And between: Geophysical Service Incorporated Plaintiff - and - Husky Oil Limited and Husky Oil Operations Limited Defendants Action no. 1301 09665 And between: Geophysical Service Incorporated Plaintiff - and - Nalcor Energy – Oil and Gas Inc. Defendant Action no. 0901 08209 And between: Geophysical Service Incorporated Plaintiff - and - Suncor Energy Inc. Defendant

Action no. 1301 15085 And between: Geophysical Service Incorporated Plaintiff - and - Murphy Oil Company Ltd. Defendant Action no. 1401 12230 And between: Geophysical Service Incorporated Plaintiff - and - Devon ARL Corporation and ABC Company Defendants Action no. 1301 07809 And between: Geophysical Service Incorporated Plaintiff - and - Statoil Canada Ltd. Defendant

Action no. 1201 15228 And between: Geophysical Service Incorporated Plaintiff - and - Anadarko Petroleum Corporation, Anadarko US Offshore Corporation (formerly Kerr McGee Oil & Gas Corporation), Canadian Natural Resources Limited and Companies A-Z Defendants Action no. 1401 05316 And between: Geophysical Service Incorporated Plaintiff - and - Her Majesty The Queen In Right of Canada As Represented by The Attorney General of Canada Itself, and On Behalf of The Department of Natural Resources and The National Energy Board Defendants

Action no. 1201 11934 And between: Geophysical Service Incorporated Plaintiff - and - NWEST Energy Corp., Shoal Point Energy Ltd. and Vulcan Minerals Inc. Defendants Action no. 1301 07877 And between: Geophysical Service Incorporated Plaintiff - and - JEBCO Seismic UK Limited; JEBCO Seismic (Canada) Company; JEBCO Seismic, LP; JEBCO/SEI Partnership LLC; and Companies A-Z Defendants Action no. 1301 10045 And between: Geophysical Service Incorporated Plaintiff - and - Corridor Resources Inc. Defendant

_______________________________________________________ Reasons for Judgment on the Copyright and Regulatory Common Issues of the Honourable Madam Justice K.M.

Eidsvik _______________________________________________________ Table of Contents I Introduction . 12 II Procedure . 13 III Can copyright subsist in GSI’s seismic data? . 15 A Introduction . 15 B Can seismic data be considered “a work”? . 16 1 The law .. 16 2 Evidence . 17 3 Field seismic data . 18 4 Processed data . 20 5 Discussion on seismic data being a “work” . 22 6 Human author 24 7 Ideas and facts are not protected . 25 8 Trivial and purely mechanical 26 9 Limited ways of expression/common industry practice/practical or utilitarian expressions 26 10 Other Canadian Decisions . 27 11 Industry Practice . 28 C Conclusion on the copyright issue . 29 IV Regulatory Regime . 29 A Parties Positions: 29 1 GSI’s position . 29 2 Defendants’ position . 29 B Issue . 30 C Decision in brief . 31 D Subsidiary Questions . 31 1 Is the CPRA silent with respect to the Boards’ ability to copy seismic data? . 31

i. Rules of statutory

interpretation . 31 ii. Discussion . 46 iii. Conclusion on the silence question . 52 2 Should the Boards have processed disclosure requests through the procedure set out in the AIA ? 52 i. GSI’s position . 52 ii. Defendants’ position . 54 iii. Discussion on the AIA question . 55 3 Have the Boards and recipients of seismic data breached the Copyright Act ? . 56 i. GSI’s position . 56 ii. Defendants’ position . 57 iii. Discussion on the Copyright question . 57 iv. Issues already dealt with . 57 v. Conflict 57 vi. GSI’s views on the Re Broadcasting case . 59 vii.

Section 32.1 of the Copyright Act 59 viii. Compulsory Licence . 59 E Conclusion on the Regulatory Regime Issue . 61 I Introduction [ 1 ] The Plaintiff, Geophysical Services Incorporated, (“GSI”), is a Canadian company that conducted offshore marine seismic surveys in the Canadian Atlantic and Arctic.

It licences this marine seismic material (also referred to as “seismic data”) to oil and gas companies mainly for exploration purposes. [ 2 ] Over the years, some of GSI’s seismic material has been deposited with Canadian and Provincial government authorities including the National Energy Board (the “NEB”), the Canada Newfoundland and Labrador Offshore Petroleum Board (the “Newfoundland Board”) and the Canada Nova Scotia Offshore Petroleum Board (the “Nova Scotia Board”) (collectively “the Boards”) pursuant to legislative and policy requirements.

Following the expiry of certain confidentiality periods, copies of the seismic material have been made available to the public. [ 3 ] GSI claims that it owns the copyright in the seismic material that was deposited with the Boards and that its copyright has been breached by the copying of the material without compensation and without its consent. GSI limits its claims to the copying of the seismic material it created on its own behalf, as opposed to seismic material created for a specific client.

The materials it created on its own behalf are variously referred to as “speculation data”, “non-exclusive data”, and “non-proprietary data”. [ 4 ] GSI also claims for losses from the conversion of its seismic material, breach of confidence, unjust enrichment, breach of contractual license agreements, negligent misrepresentation and contractual interference.

As I will explain, these claims are not now before me. [ 5 ] GSI has commenced 25 actions in Alberta against the Boards, numerous oil and gas exploration companies, seismic companies, and copying companies (a complete list of Defendants at the hearing is attached as

Schedule A). There are also other actions revolving around the same issues in other jurisdictions such as the Federal Court and in the Newfoundland and Nova Scotia Courts. [ 6 ] The Defendants’ position is that GSI does not have copyright in the seismic material filed with the Boards (or at all). The ability 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 (“the Regulatory Regime”).

The Regulatory Regime vests only certain rights and allows the copying of the material in question after the confidentiality period has expired. Accordingly, the Defendants argue, there have been no breaches of any property rights in GSI’s seismic material. [ 7 ] In April 2015, Chief Justice Wittmann took over case management of these actions in light of numerous interlocutory applications that were filling the Court docket.

To help streamline the many GSI actions in front of this Court, and after much input from the parties and many hearings on the issue, on June 2, 2015, the Chief ordered the trial of two common issues, which in sum are as follows (“the Chief’s Order”): 1. What is the effect of the Regulatory Regime on GSI’s claims?

2. Can copyright subsist in seismic material of the kind that are the subject matter of GSI’s claims? II Procedure [ 8 ] The evidence for the trial of the common issues was submitted mostly in written form. It consisted of seven lay witness affidavits, with their transcripts of cross-examination and answers to undertakings, and five expert reports. Two of these experts, Dr. Wren and Mr. Vasey, were called to give evidence and were cross-examined. All of these documents and physical exhibits (such as tapes, CDs, paper seismic sections, etc.) were marked as exhibits.

The documents were also provided in electronic format (USB sticks or CDs) and many of these also were marked as exhibits. [ 9 ] As for argument, the Plaintiff filed one comprehensive brief and the Defendants filed two, one on the copyright issue and one on the Regulatory Regime issue. The briefs were filed in a hyperlinked format and all authorities were also submitted electronically. The Chief ordered the Defendants to coordinate their submissions by designating counsel to handle discrete issues instead of allowing each of the 35 or so counsel to make separate submissions.

This worked very well for both the written and oral submission phases of the trial. [ 10 ] During the oral hearing I had access to almost all of the documentation in an electronic format and was able to access it on a computer on the bench. Considering the volume of material, accessing it in this way worked very well and ultimately kept things organised beyond what was possible in paper format.

This is especially important now considering that cut backs to clerk staff has meant that large files like these simply cannot be managed without documents being lost – as was the case with many paper exhibits here sadly. [ 11 ] The Defendants largely maintained the same position on all issues.

The one exception was the Defendant Olympic Seismic Ltd., which agreed with the Plaintiff that the seismic material was copyright protected, but concurred with the rest of the Defendants that the Regulatory Regime allowed it to be copied in the circumstances before this Court. [ 12 ] Interspersed with the trial of the common issues was the trial of one of the 25 actions that already had been set for trial before the common issues were added: GSI v 612469 Alberta Limited Carrying on Business under the trade name CalWest Printing & Reproductions. The common issues bind that action. Ten lay witnesses were called.

I will render the decision dealing specifically with the CalWest action separately. [ 13 ] Subsequent to the hearing, I asked for submissions on a copyright issue that was not addressed at trial, namely, whether the seismic material was a protected sound recording pursuant to s 18 of the Copyright Act , RSC 1985, c C-42.

The Defendants object to my consideration of this issue on the basis that the Plaintiff did not plead it and that there was no evidentiary focus on this possibility. [ 14 ] Although the general wording of the common issue on copyright could include all sections under the Copyright Act , I agree with the Defendants that the pleadings in the various actions must trump the general question. Protection under s 18 of the Act is not pled and no application has been forthcoming.

Accordingly, for present purposes, even though it appears on the evidence before me that s 18 may well apply to protect the seismic material, it would be unfair to rule on this definitively without proper notice and an opportunity for all parties to address the issue with the appropriate evidence and argument. If the Plaintiff wishes to pursue this further, it should bring the appropriate application. [ 15 ] Another issue that came up at the end of the common issues hearing was whether Canadian or American law should apply to determine whether the seismic material is copyright protected in Canada.

This arose because the Defendants objected to the expert report of Andrew Goldberg on American copyright law being made an exhibit in light of their view that only Canadian law applied. As a result, they submitted that this report was irrelevant and improper. The argument on copyright in the common issues hearing had been based on Canadian law to that point.

GSI had not argued that American law applied and had only mentioned in its brief that even if American law did apply, GSI had the right to copyright protection in Canada. [ 16 ] The seismic material at issue in these common actions is all purportedly presently owned by the Plaintiff, a Canadian company, and was collected and created over Canadian waters and subsequently on Canadian soil (in Calgary). In some of the actions however, the former owners and creators of the seismic data in question were American. [ 17 ] Since this issue is not common to all of the parties, I will not deal with it in this decision.

The issue is squarely before the Court in the CalWest action since an American company created the seismic data in that case, so I will deal more fully with this issue in that decision. [ 18 ] The decision on the copyright issue in these reasons is based on Canadian law.

Ultimately, the Greenberg affidavit was allowed in without objection to ensure that there is an evidentiary base of American copyright law in case I am overruled on this procedural finding. [ 19 ] The Plaintiff also objected to some of the evidence found in the Defendants’ lay witness affidavits on the basis that they contained opinions and argument. The application was dismissed and the affidavits allowed other than paragraph 10 in the Millar affidavit and paragraph 20 of the Harrison affidavit which contained argument rather than facts. [ 20 ] The only other major procedural issue arose with respect to Mr.

Vasey’s evidence. The Plaintiff objected to his evidence alleging bias since he had been an employee of the Defendant Olympic Seismic Ltd. in the past. I ruled, based on the test set out in the recent Supreme Court of Canada case, White Burgess Langille Inman v Abbott and Haliburton Co . , 2015 SCC 23 , that this past employment would not render his evidence biased in these circumstances.

I accepted that his evidence would be independent and impartial for the purposes of this common issues trial. [ 21 ] I also remarked that although our Rules of Court may not necessarily require that objections on the basis of an expert’s

qualifications must be raised on an advance basis (as is the case for an objection to the opinion being tendered - see Rule 5.36), it is better practice to make such an objection in advance.

If the objection had been upheld in this case, it could have led to an adjournment of the trial to allow the Defendants to seek other rebuttal expert evidence, which would have been very unfortunate. [ 22 ] Turning to the substantive issues, despite the fact that the Chief’s Order set question 1 as the Regulatory Regime issue and question 2 as the Copyright issue, I will discuss these issues in reverse order for reasons that will become obvious as you read my decision. III Can copyright subsist in GSI’s seismic data? A Introduction [ 23 ] The protection of many intellectual property rights are created by statute.

This includes copyright where, in Canada, the definition and protection of those rights are found in the Copyright Act . Indeed, even the term “copyright” is defined in s 2. It states that “copyright” means, in the case of a “work”, the rights described in s

Section 3 protects the sole right to reproduce the work; the protection is time limited. [ 24 ] In GSI’s actions before this Court, the time limit of the protection of the seismic material is really at the heart of the claims. As will be discussed, the Regulatory Regime protects the seismic material deposited with the Boards for a period of 5 to 15 years. By contrast, copyright protection lasts for 50 or more years.

It is this extra protection that GSI seeks and says has been breached. [ 25 ] To determine whether s 3 bestows copyright protection on the seismic material the first question is whether the seismic material meets the conditions to qualify as a “work”. The conditions for property to be considered a “work” are numerous and stringent, and the determination is a factual one. [ 26 ] The Chief’s Order outlines the kind of seismic materials at issue. It includes: (

i) Raw seismic field data, or raw seismic, magnetic, and gravity data; (ii) Seismic related navigation data; (iii) Processed and reprocessed seismic data; (iv) Selections, arrangement and compilations of raw, processed and reprocessed seismic data; (

v) Productions and reproductions of seismic data in various forms and media including physical, electronic, magnetic and digital works; (vi)

Interpretations, derivations and translations of the seismic data; and (vii) Related seismic data materials. [ 27 ] The Defendants have argued that the first types of data (raw or navigation data) are not the subject of the claims, which may be correct. However, unlike the sound recording issue, the copyright protection of this type of data was specifically included as an issue to be determined, and the parties led evidence and argument on this point so I will deal with it. [ 28 ] GSI argues that its seismic material is protected as a compilation of a literary or artistic work.

GSI proferred the evidence of its principals, Mr. Davey Einarsson (now retired) and Mr. H. Paul Einarsson, as well as the expert evidence of Dr. Wren, Mr. Harper, Mr. Gill and Mr. Greenberg to support its position. [ 29 ] Relying on this evidence, GSI argues that the seismic material 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. It is a literary and/or artistic “production” in the scientific domain.

The seismic material is fixed onto tapes, CDs, digital sticks, or other formats depending on when it was created, and ultimately displayed as “seismic sections”, long squiggly lined paper documents (or digital images), which can then be interpreted by professional geophysicists. [ 30 ] The Defendants relied upon the expert evidence of Mr. Vasey. They argued that the seismic material does not satisfy the requirement for copyright because the works were created by computer programs, not the “skill and judgment” of human authors.

They submit the creation of seismic data is purely a mechanical exercise, the expression of any ideas are limited by common industry practice, practical considerations, utility and are directed by parties other than the author; hence, the seismic material is not “original” and cannot be considered a “work” as defined in the Copyright Act .

B Can seismic data be considered “a work”? 1 The law [ 31 ] The relevant portion of s 3 of the Copyright Act states as follows: 3(1) For the purposes of the Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, ....

[ 32 ]

Section 5 sets out the necessary conditions for copyright to exist: 5(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions are met: (

a) In the case of a work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country; [ 33 ]

Section 2 defines “every original literary, dramatic, musical and artistic work”: “every original literary, dramatic, musical and artistic work” includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science. [ 34 ]

Section 2 also defines “literary work” and “artistic work”: “literary work” includes tables, computer programs, and compilations of literary works “artistic work” includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works [ 35 ] “Compilation” is defined to mean (

a) a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or of parts thereof, or (

b) a work resulting from the selection or arrangement of data. [ 36 ] Thus, the question becomes whether GSI’s seismic material can be considered an original production in the literary, scientific or artistic domain in its various forms of expression, which include tapes, CDs, computer sticks, seismic sections, and written final reports, and as such constitute an original literary or artistic work. [ 37 ]

Section 34.1(1) of the Copyright Act provides that in any civil proceedings under the Act in which the defendant puts in issue either the existence of the copyright or the plaintiff’s title to it, “(

a) copyright shall be presumed, unless the contrary is proved, to subsist in the work ...sound recording... as the case may be”.

So I must start with a presumption that GSI has copyright in the seismic material in issue. [ 38 ] GSI also registered its copyright, which gives further presumptions; however, GSI has filed an undertaking that it will not seek to rely against the Defendants in these actions upon the registration of any one or more of the certificates because they are currently being challenged in Federal Court. [ 39 ] As noted above, the main dividing issue between the parties is whether the seismic material can be considered “original” as interpreted by our courts.

Both parties have offered a plethora of cases and extracts from learned authors who have written on this issue. I will return to the details and application of these cases shortly, although I note that many are dated or are from other jurisdictions and must be interpreted in light of the seminal case from our Supreme Court which defines the term “original”: CCH Canadian Ltd. v Law Society of Upper Canada , 2004 SCC 13 . [ 40 ] After a thorough review of the authorities and differing

interpretations of the term “original” in other jurisdictions, Chief Justice McLachlin concluded as follows at para 16 of CCH about the meaning of the term “original” in the Copyright Act : I conclude that the correct position falls between these extremes [pure labour versus creativity]. 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. [Bold emphasis and addition in square brackets mine] [ 41 ] The Defendants raised a secondary, but related, issue: whether GSI has shown that its work derives from a human author. [ 42 ] It is with these issues in mind that I now turn to the evidence on these points. 2 Evidence [ 43 ] As noted above, the Chief’s Order identifies several types of seismic material.

This material can be divided into two general categories: the raw or field seismic data (items (

i) and (ii) in the Chief’s Order), and the processed data (items (iii), (iv), (v), and (vi) in the Chief’s Order). [ 44 ] The most relevant evidence on the issue surrounding the creation of the seismic material was given by Mr. Paul Einarsson, especially in exhibit 14 to his affidavit sworn on July 13, 2015, and by Dr. Wren and Mr. Vasey. [ 45 ] Generally, the Plaintiff’s and Defendants’ experts were fairly consistent regarding the process of acquiring and refining seismic data, especially when Mr.

Vasey accepted that the only type of seismic data being considered in these proceedings is non- exclusive, or as he put it, non-proprietary data. The difference, for copyright purposes, is that when GSI is hired by an oil company, for example, many of that company’s expert geophysicists and other scientists 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 rather than GSI’s. Mr. Vasey conceded that his comments that suggested GSI had no choice on certain decisions would not apply in the case of non-exclusive or “speculative” data acquisition. [ 46 ] I now turn to the more specific evidence about field data and processed data.

I will then proceed with the analysis of whether seismic data meets the originality criteria set out by the Supreme Court in CCH and whether the data qualifies as a literary or artistic work in the scientific domain. 3 Field seismic data [ 47 ] “Field data” is a defined term in the Association of Professional Engineers and Geoscientists of Alberta Guideline for Ethical Use of Geophysical Data , Edmonton: APEGGA , 2010, p 5 (the “ APEGGA Guidelines ”).

It is described as “[t]he original recorded geophysical data, sometimes referred to as basic or raw data, together with the description of the complete recording parameters. For seismic data in particular, this means geophysical shot record, survey information and observers’ reports.” [ 48 ] Both experts appended drawings of the marine seismic creation process. I reproduce Mr. Vasey’s simple illustration here showing the components of a marine seismic operation: [ 49 ] This illustration shows the acquisition process for seismic data.

Before the ship arrives at the location to start recording the data, there is much planning and decision making about where to acquire the data. Commercial realities influence these decisions, along with knowledge of the area, permit acquisition, etc. GSI must have a general idea of the geology of an area, since it is only going to image where it ultimately hopes exploration companies can use the data to find oil and gas. [ 50 ] There is also technical planning in advance of the survey operation to determine how the earth’s floor will be imaged.

For instance, the “source array” must be determined, tuned and tested. Presently, the most prevalent marine seismic source in use is the air- gun. The air guns are steel cylinders with ports in their side. As described by Dr. Wren at p 9 of his report: They are towed behind the vessel and submerged.

They are filled with highly compressed air and when the ports are opened the air escapes creating a large bubble that expands, collapses and creates a pressure or sound wave that travels through the water....Decisions regarding size, placement, and clustering of the air guns ensure the maximum amount of useful information is obtained for the location being surveyed. [ 51 ] Dr. Wren testified that there are no industry standards that apply to the design of the source array. Computers are used to help with the design but they do not do it by themselves.

The decisions about the number of guns, size, spacing and depth are technical ones. These decisions can be compared to a symphony, where the result is an array of frequencies that can be used to best image the subsurface geology. [ 52 ] The seismic receiver array is also determined in advance. The arrangement changes from one survey to the next. The receivers are enclosed in long streamers that can vary in length from 5 to 12 kms. The streamers contain the hydrophones that respond to the sound waves emitted by the air guns and send the signal to the recording instruments on the ship.

The type, number and location of the hydrophones must be determined, as well as the spacing between streamers, the number of streamers and their depth. [ 53 ] During the recording of the acoustic signals, the seismic team onboard monitors many factors, including the equipment, weather, waves, other vessels, currents, marine life, etc. because they all can affect the quality of the signal being recorded.

The team makes decisions about the quality of the recording as it is being realised and they make adjustments if there is too much noise or interference, otherwise the collection may have to be interrupted or stopped, and the creation may have to be re-done. [ 54 ] Dr. Wren explains the recording of seismic field data at p 10 of his report:

Field data is a product of the careful design of the source and receiver configurations as well as the parameter settings of the recording system. The design criteria are selected to optimise the data quality.

The recording of seismic data is therefore very similar to the careful parameter settings in the practice of photography, and perhaps more closely aligned with the graphic equalizer or mixing board in the music recording studio. [ 55 ] The field data that is created was originally stored on paper records, but with the advent of the digital era data was stored on open reel tapes, tape cartridges and ultimately on high capacity Exabyte cartridges and CDs. Examples of many of these formats were marked as exhibits during the trial. These products are the result, in Dr.

Wren’s view, of substantial intellectual effort in the planning, execution, and recording of the seismic program. The data is a digital recording of reflected sound waves and related information. The creation of this data is through the technology of seismic reflection theory. [ 56 ] Mr. Vasey described the evolution of the marine seismic collection industry in his report. He discussed the progression from a single streamer being towed behind a ship, to purpose built ships with multiple streamers and the explosion of data that came on board, now stored by computers whose power has grown over the years.

Once it was made clear that only speculative data is at issue as discussed above, there was nothing in Mr. Vasey’s opinion that took away from or contradicted Dr. Wren’s views that skill and judgment are necessary in the decisions that must be made to plan the survey and to gather the data, other than his emphasis on the role of a computer in performing these tasks. 4 Processed data [ 57 ] The next stage of seismic data acquisition is for the field data to be processed. Before processing, the field data is basically a string of binary numbers.

Importantly though, these binary numbers are fixed on various forms of media, as discussed above, and can be reproduced. For industry purposes, however, the field data must be carefully processed to be meaningfully interpreted by the geoscientists on paper sections or on computer workstations. [ 58 ] Processed data is called “geophysical data derived product” in the APEGGA Guidelines . It is “any product derived, generated or created from the data, including, but not limited to, any and all processed and reprocessed data,

interpretations, maps or analyses, regardless of the form or medium on which it is displayed or stored.” [ 59 ] Dr. Wren summarised the processing step as follows at p 13 of his report: In general terms, processing involves the filtering of noise, repair of signal, and repositioning of all data samples into their “true” spatial locations. In addition, attempts will be made to generate proper amplitude values. The practices of processing 2D data are common to 3D while 3D data has it own particular problems and processing solutions.

In general, all field data is processed with a flow or sequence of individual algorithm steps, each designed to pre-condition the data for the next step. The “menu” is a fairly routine system but is subjective in the sense that different companies have different software with different approaches, and the choice of parameters in each step is also subjective. Thus geophysicists have preferred processors, usually individual as opposed to a company, in much the same way people have preferences for family doctor, dentist, car mechanic, etc. [ 60 ] Dr.

Wren describes 23 basic processing steps at pages 13 - 14 of his report. He explains that each step requires the seismic processor or geophysicist to make decisions based on his or her skill and judgment. At page 15 of his report, he writes: For example, during the “data reformat” the seismic processor must compare the format of the incoming data with the reformatted data to be sure the reformat was done correctly without abnormalities. Likewise a “seismic data merge” requires scrutiny of the data headers to make sure the merge has taken place properly.

The trace data must then be edited for wild and bad traces and analysed to determine if there is too much noise to make it useful. [ 61 ] In describing the process, Dr.

Wren explains that many of the steps can only be done by an experienced processor because selecting the wrong parameters or picking the wrong data can affect the final image, such that it could be interpreted entirely differently and even erroneously. [ 62 ] Further, some of the steps involve iterative processing, which means that the activity must be performed multiple times choosing and selecting different applications or settings until the processor believes he has the best product. [ 63 ] In his testimony, Dr.

Wren described a situation known as a “turkey shoot”: oil companies that have paid for the acquisition of raw data will ask several different processors to process some of the data and will choose the processor who does the best job. [ 64 ] Dr. Wren’s evidence about the collection and processing of seismic data was not contradicted on cross-examination. He was challenged about his opinion that two processing companies given the same data would come up with different seismic sections.

He was asked if it would be an error if these two different processing companies did not both see a salt dome “the size of Everest” in the data. Dr. Wren agreed that “on that scale” both companies would have seismic sections that showed a salt dome. Nonetheless, the sections would not be exactly the same and the scale of difference would depend on the processing company’s skill. [ 65 ] The focus of Dr. Wren’s cross-examination was to distinguish the technological versus human involvement in the seismic data processing.

For instance, he was asked to confirm that a human ear can hear the airgun blast, but only the hydrophones, a technological piece of equipment, can hear the reflection back. Further, technological recording equipment then records the seismic signal. He confirmed that the digital recording of reflected sound waves and related information are recorded in binary format. He was then asked about the computer involvement and the quality control aspect of data processing. He confirmed that a “plotter”, driven by a computer, produces the zebra stripes or wiggly lines seen on seismic sections. Dr.

Wren confirmed that scientific principles will drive the processing and that there are certain “rules of thumb”, or industry standards, which have evolved over the years. [ 66 ] Mr. Vasey did not disagree with Dr. Wren’s description of the decisions that need to be made in the processing stage of

seismic data acquisition. His main points were that processors use common industry standards and that creativity is not rewarded; qualitycontrol systems ensure that the scientific method is applied. He opined that “two well respected competing seismic data processingcentres would produce a product that is substantially the same.” He opined and emphasised that computers do all of the work. [67] In cross-examination, however, Mr. Vasey conceded that “turkey shoots” happen in the industry as described by Dr. Wren.

Hediscussed meetings in which three seismic processing groups were brought into a room and their seismic sections were put on the wall tocompare and contrast. Further, he confirmed that re-processing the raw data may lead to different and better results the second timearound. [68] Mr. Vasey also acknowledged that seismic processing is done by teams who make the processing decisions and that the orderand types of steps vary. For instance, certain noise reduction steps can occur at the beginning or at the end and industry standards existfor some steps of the process, in that they are “hard wired”, but not for all.

He also acknowledged that even once the processing teamdetermines the type and order of the steps in the process, the parameters may be altered in response to test results throughout the process. [69] Finally, Mr. Vasey confirmed there is more than one set of “industry standards” for the acquisition and processing of seismicdata.

Indeed, he stated “no more than there’s one set of standards in this room”, referring to the 35 legal counsel who were busy takingnotes. [70] Based on all of the above, I accept that the scientists involved in acquiring and processing seismic data do the best they can,since this is a scientific endeavour, with the technological tools available to them, to create an accurate product that explorationcompanies can rely on.

I find that there is much skill and judgment involved along the way to create this product and it is not fair to saythat there is just one way of doing things, or an “industry standard”, in that regard. [71] The evidence of Mr. Chip Gill, which I accept, was also illuminating on the question of whether seismic data is “original”.Mr. Gill has 35 years’ experience in the oil and gas industry and was the President of the International Association of GeophysicalContractors between 2001 and 2014.

He provided the following opinion at p 19 of his report: Like when seismic data is acquired, when seismic data is processed and reprocessed, and regardless of whether acquired exclusively ornon-exclusively for licence, the geophysicists and other experts carrying out the work will select and order the processing andreprocessing schemes to tailor the results based on input from the acquisition project itself, the imaging and commercial objectives andother relevant factors.

For instance, they will choose among a variety of possible velocity models for migration, choose specific anddetailed migration techniques and select specific gain parameters for the processing and reprocessing. Thus, the acquired and processedseismic data, whether the data is to be owned exclusively or non-exclusively and made available for licence, is tailored, unique andoriginal to its owner. [72] During the trial I was shown various “seismic sections”, the final image of the processed seismic data.

In court, we reviewedpaper sections, although it was explained that presently these sections are stored in digital format, called SEG-Y data files, on tapes orDVDs, and now are interpreted on computer workstations. [73] Each paper seismic

section had a

summary in a fairly standard “side label” of some of the processing steps that had been takenand the signature of the head processor (somewhat like a professional engineer who signs architectural plans). Even on the few examplespointed out to me, it was obvious that few steps are alike.

The different choices are made by professionals using their skill and judgment,which of course considers industry and scientific standards; one would expect no less from any professional scientific product. 5 Discussion on seismic data being a “work” [74] As discussed above, there was little debate between the parties that the field data and processed data are productions in thescientific domain. The field data is fixated on various media such as tapes, cartridges and CDs and the processed data is stored in digitalformat and also stored in SEG-Y data files on tapes or DVDs.

The processed data is also converted to seismic sections, which can beprinted on long paper as squiggly or zebra lines or viewed on computer workstations. [75] In my view, the raw seismic field data and written reports are a literary work or a compilation of a literary work. Like in Apple Computer Inc. v Mackintosh Computers Ltd., (1987), (SCC), 28 DLR (4th) 178 (FCTD) at para 40, [1990] 2 SCR209, the collected field data is a compilation of binary numbers that constitute a literary work.

I rely in particular on the Apple trialdecision, in which Justice Reed discusses the fact that writings in the form of alphanumeric code (i.e. in electrical impulses) have beenincluded within the definition of compilation of a literary work.

Or, as described by Justice Cory in the Apple Supreme Court decision atpara 15, “programs in assembly language... are protected by copyright under s. 3 (1) of the Copyright Act.” [76] I find the seismic sections, i.e. the squiggly or zebra lines, fit within the definition of an artistic work, similar to a map, plan orchart, 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. [77] Based on the evidence before this Court, the data becomes a “work” when it is compiled.

One ping from a hydrophone wouldnot suffice; it is the collection, arrangement, distillation and compilation that creates the work – both at the raw data level and then at themore refined processed data level (see too Robertson v Thompson Corp., 2006 SCC 43 at paras 36 and 37).The more difficult questionis whether these literary or artistic products are “original”, as defined in CCH, so as to qualify as “works” within the meaning of the Act. [78] In my view, based on the evidence presented, both the raw or field data and the processed data meet the “skill and judgment”test laid out by the Supreme Court in CCH and should be considered “original” artistic or literary productions in the scientific domain,therefore protected “works”. [79] “Skill” is required to produce seismic field data because its production requires the “knowledge, developed aptitude andpracticed ability” of the seismic crew.

The planning stage involves various decisions, but the true creative effort occurs as the air guns

create the sound that is recorded by the hydrophones and collected in a certain way to make it usable for the next stage of processing.The data is created, not merely collected, through the intervention of human skill. [80] The Plaintiff argued that data creation is akin to taking a photograph. I agree.

In this case, the photograph is not just a quicksnapshot; rather, it is one that requires careful selection of the location, angle of technological instruments (e.g. the size and depth of theairguns, the length and depth of the streamers, and the number and placement of hydrophones), and finally the filtering and refining ofthe product. [81] Dr. Wren’s comparison is even more compelling – he suggests the creative effort compares to that of the conductor of anorchestra, who ensures that some instruments are played louder, or softer, or faster or slower, to make a beautiful creation.

The sametypes of decisions are made on board the seismic acquisition ship to obtain “beautiful” raw seismic data. [82] Judgment is evident in the production of field data through the multitude of decisions made by the seismic crew. The crewmust have the “capacity for discernment or ability to form an opinion or evaluation by comparing different possible options.” Mr. PaulEinarsson’s evidence was helpful on this point.

As he put it, 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 berestarted with different parameters. Only skilled experts are able to make these decisions. [83] As for the processed data, the processors exercise skill and judgment in the decisions they make to create a usable productfrom the field data. The raw data is not simply pumped into a computer and a useful product comes out.

The evidence is clear that theprocessed product can be quite different depending on the skill of the processor and that exploration companies have their favouriteprocessors who create the best quality product for their purposes. [84] The fact that on a gross basis the product may be similar – like in cases where a geological formation is as big as Everest, touse the Defendants’ example, does not take away from the fact that to get a more refined product, (i.e. one that can be relied upon byexploration companies for their exploration investment), the best image will be made by the processor with the most skill. [85] For all of the above reasons, I conclude that the seismic data is an “original” work. [86] I have considered the Defendants’ arguments to the contrary but find none to be compelling.

They argue that copyright cannotsubsist if there are limited ways to express an idea; if the expression uses common industry practice; or, if the expression is in partutilitarian or determined by practical considerations. These suggestions come from various cases where originality was not found. Theyare all ways of saying that a work is not original.

But these are not the tests for originality; the test is in CCH, as quoted above. [87] Keeping this general remark in mind, I will explain why I do not accept the Defendants’ analysis on each ground, roughlyfollowing the order of the objections in their brief. 6 Human author [88] Clearly a human author is required to create an original work for copyright purposes.

The Defendants argue, however, at para102 of their brief that “copyright does not subsist in a work which is created by a computer with little if any human input.” They rely onthe Australian case Telstra Corporation Limited v Phone Directories Company PTY Ltd,

(2010) FCAFC 149. [89] First, I do not accept that seismic data is created with “little if any human input”. I reject the suggestion that the data is createdby simply throwing a microphone in the ocean and pushing the “record” button on a computer. Human input is involved continuouslythrough the acquisition stage, like creating a sound recording, as eloquently described by Dr.

Wren’s report. [90] I agree with the conclusion in Telstra that putting together a generic telephone book may not require the human skill andjudgment necessary to attract copyright protection if all that is being done is listing names in alphabetical order. I note that in the Canadian case, Tele-Direct (Publications) Inc. v American Business Information Inc. (1998), (FCA), 154 DLR (4th)328 (FCA), however, the court found that copyright existed in the yellow pages – copyright was rejected only for the mundane act ofinserting block ads.

Furthermore, Teledirect pre-dates CCH and emphasizes the need for creativity beyond what our Supreme Court nowsays is required. I also note that when more human input is required for the creation of directories, such as specific groupings of people,like Italians in the Ital-Press Ltd. v Sicoli (1999), (FC), 170 FTR 66 (FCTD) or oil and gas directories in B&SPublications Inc. v Max-Contacts Inc. (2001), (AB KB), 287 AR 201 (QB), Canadian courts have accepted that thecompilation is “original”. [91] Ultimately, however, these are all factual determinations.

In Telstra, the court concluded that the process was mechanical andinvolved little human input. Chief Justice Keane said at para 4, “the compilations were brought into the form in which they werepublished primarily by an automated computer process”. And later at para 33, “A majority of the creation process of the WPD and theYPD was heavily automated. Human intervention was regulated and controlled...” In that case, the computers virtually took over all thenecessary decisions involving skill and judgment. That is not the case on the facts before me.

Even though many technical instrumentsare used in the production of seismic data, they require human intervention, in the form of expert scientific skill and judgment to makethem work. The seismic data produced through this exercise of skill and judgment is “tailored and unique” to the author. In my view, thehuman authorship element has been satisfied. [92] The Defendants also argue that GSI’s claims should fail because they have not proven the identity of the specific person whocreated the seismic data.

Such proof is unnecessary given the nature of the common issues question: “can” copyright exist in the seismicdata not “does” it exist. [93] I further point out that the law does not appear to require the identification of a specific author to assert copyright. Indeed, s6.1 of the Copyright Act contemplates situations in which the author is unknown (in terms of the length of the term of protection).Further, the case law references multiple authors as being the “author” when employees put together a work as a team (see Tremblay v

Orio Canada Inc., 2013 FC 109 at para 34;affd 2013 FCA 225, where the plaintiff through its employees was found to be the author ofthe computer program; B&S Publishing at para 1 where the “help of staff” was credited; and, Ital-Press where multiple authors workedon the guide). [94] The evidence here indicates that various employees of GSI (old and new) lead the seismic data creation process at differenttimes. As noted at paras 31- 34 in Tremblay, the author is the one who “clothes the work with form,” or “expresses the idea,” or usestheir 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 theseismic 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 instance, Mr Clink signed the seismic

section inevidence in this trial). For ownership purposes, the author will be GSI, since s 13 of the Copyright Act provides that the employer will bethe owner when an employee is retained to do the work. While this may be controversial in some situations, it is not an issue here. [95] Also, I note that s 34.1(2) of the Copyright Act states: Where any matter referred to in subsection (1) is at issue...(

a) if a name purporting to be that of (

i) the author of the work...is printed orotherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, bepresumed to be the author, performer, maker or broadcaster. Applying this principle here, Mr. Clink would be the presumed author of the seismic

section in evidence since his name is printed on thedocument. 7 Ideas and facts are not protected [96] The Defendants argue that the seismic data in question are not an expression of the thoughts or ideas of any person. Theysubmit that the subsurface of the earth is unknown; therefore, no one can claim to have drawn an accurate picture of it, based on his orher thoughts or ideas. Rather, a scientific expedition is undertaken to discover the relevant facts and to collect the relevant data.

Theysuggest that GSI is seeking to obtain an exclusive right to information and knowledge and that copyright does not extend to this type ofmaterial. [97] The Defendants, in my view, are correct in their submission that copyright extends to the expression of an idea, i.e. the work,not the idea or facts contained therein. I differ from them in finding that the seismic data is an expression of GSI’s views of what theimage of the subsurface of the surveyed areas represents.

The creation is obtained by a series of sounds emanating from the subsurfacethat have been collected, selected and arranged in a very particular fashion and stored on various media. The facts themselves, the rocks,are still at the bottom of the sea available for anyone else to survey. [98] Alternatively, if one says that an individual ping of sound is a “fact” then these too can be obtained by someone else whowants to go to the same location and bounce sound waves off the bottom of the sea (although it is unlikely that the new person would getexactly the same sound for the reasons discussed above).

The tapes of the collections of sounds are no different from a negative of aphotograph or the tape recording of a symphony. It is the compilation that makes them a protected work. The Copyright Act does notrequire a “preconceived” idea to protect its expression. 8 Trivial and purely mechanical [99] The Defendants submit that the raw seismic data is the product of a purely mechanical exercise, like the editorial efforts incorrecting judicial decisions for publication, save for the headnote, as found in CCH. This argument is really a matter of degree.

Whilethe minor editorial efforts to correct a judgment is not enough to warrant copyright protection, for the reasons described above, Iconclude that the creation of field and processed data requires the exercise of sufficient skill and judgment of the seismic crew andprocessors to satisfy the requirements of CCH. 9 Limited ways of expression/common industry practice/practical or utilitarian expressions [100] The Defendants argue there is no entitlement to copyright protection when there is a limited way to express an idea; where theselection or arrangement is directed by accepted and common industry practices; or, where practical considerations are directed by utilityor externally imposed requirements.

They rely on cases involving mobile phone telephone lists (Forensic Telecommunications ServicesLTD v Chief Constable of West Yorkshire Police, [2011] EWHC 2892 (Ch)); the improvement of a software program (Delrina Corp. vTriolet Systems Inc. (2002), (ON CA), 58 OR (3d) 339 (CA) and Harmony Consulting Ltd v G.A.

Foss TransportLtd., 2011 FC 340, affd 2012 FCA 226); a pharmaceutical label form (Distrimedic Inc. v Dispill Inc [2013] FC 1043 (FC TD)); and payroll books and payroll statements (Bonnette v Enterprise Dominion Blueline Inc (2005), 2005 QCCA 342 , 41 CPR (4th)331 (Que CA)). [101] In my view, these cases do not stand for such steadfast rules or copyright criteria. Certainly, these considerations were part ofthe analysis in those cases in deciding whether the production was an original work, but they are not the test.

The judge in each casemade a factual determination about whether sufficient skill and judgment was brought to the work to merit the “original” finding. [102] In Forensic Telecommunications, the collection of telephone numbers did not meet the British test; the plaintiff had not usedskilled judgment and labour “in devising the form of expression of the addresses” and there was no “intellectual creation”. The facts inForensic Telecommunications are not so different from Telstra, yet the Canadian telephone book cases take a more generous view ofthe amount of skill and judgment necessary to create the compilation.

Either way, the telephone book cases are distinguishable from thissituation, in which much more skill and judgment is used to create the sound and the imaging of seismic data. Furthermore, “intellectualcreation” or “creativity” is not an element of the test for copyright in Canada. [103] In Delrina and Harmony, the courts considered that the modifications to the software programs were not sufficient to be

original works. In Harmony , the modifications were “mechanical amendments” and in Delrina , the court found that there was only a limited number of ways to express the same idea, so the threshold of originality was not met. Here, we are not dealing with modifications of a product, so Harmony is not helpful. And in light of Dr. Wren and Mr. Vasey’s evidence, I have rejected the notion that there is only a limited number of ways to create seismic data. [ 104 ] Distrimedic also does not apply.

If all that was at issue in the seismic data was the copyright status of the side label, there might be some analogy to the pharmaceutical label. But we are dealing with a much vaster amount of product, so the analogy to the pharmaceutical label in the Distrimedic case is not applicable. [ 105 ] The Defendants rely on Distrimedic and Delrina to argue that there can be no copyright when the selection and arrangement of data are directed by practical considerations, utility or externally imposed requirements.

Although there are certain industry standards in play for some of the decisions made during the acquisition and processing of seismic data, they do not form the substantial amount of the product here.

In other words, the original skill and judgment that comes to bear on the final product of the seismic work far outweighs the portion of “hard wired” industry standards in play. 10 Other Canadian Decisions [ 106 ] The Defendants refer to two trial level decisions that have held there is no copyright in raw seismic data and submit that these are rightfully decided and should be followed by this Court: Geophysical Service Inc. v Canada-Nova-Scotia Offshore Petroleum Board , 2014 FC 450 (the Board case) and ResourceEye Services Inc. v Atrum Coal Groundhog Inc. , 2015 BCSC 821 . [ 107 ] In the Board case, GSI sought an interim injunction to prevent the respondent board from incorporating some of the final migrated seismic line data GSI had submitted to the board in maps that were included in a call for bids document the board posted on its website.

The board argued that although it was clear GSI had created the raw seismic data, the limited evidence before the court suggested that a separate company, Canadian Superior Energy Inc., had done the processing and had exercised the skill and judgment to transform the raw seismic data (SEG-

D) into the compilation (SEG-

Y) that was submitted to the board. There was no evidence that a licence had been obtained by this Company from GSI. [ 108 ] Justice Annis found no copyright in the data itself at para 24: No copyright can subsist in geophysical data or seismic data.

The copyright must exist in the compilation analysis thereof (see Tele- Direct (Publications) Inc v American Business Information, Inc , [1997] FCJ No 1430 [CA] at paras 28 and 29, 221 NR 113 ). [ 109 ] The judge noted at paras 26 and 27, however, that despite the paucity of evidence the presumption of copyright applied: ...there remains at least a serious issue over copyright ownership given all of the facts that otherwise demonstrate GSI’s ownership of the data and major role in its collection and compilation.

In other words, CGG’s name on the material is insufficient to overcome the serious issue that the presumption of copyright applies. [ 110 ] Ultimately, Annis J dismissed the application because very little of GSI’s material had been used in the map so there was no serious issue of infringement of GSI’s copyright, there was no irreparable harm, and the balance of convenience favoured the board. [ 111 ] The obiter comments in the Board case about the copyright on limited evidence in an injunction application do little to support the Defendants’ case here. [ 112 ] In Atrum Coal , copyright was asserted over geophysical core samples and the location of drill holes taken by the plaintiff as part of a geological survey of a potential mining operation.

An application was brought to add parties to the litigation. The court held that the raw data in question was incapable of attracting copyright protection.

After quoting the one phrase from the Board case that “no copyright can subsist in geophysical data,” Justice Harvey added at para 42: Absent any suggestion of the material comprising original work or a report setting out the analysis and evaluation of the project, the subject matter of the alleged breach of copyright displays none of the originality, creativity, skilled labor or judgment that arguably attracts the protection of copyright. [ 113 ] Again, it appears there was a paucity of evidence on the copyright issue on this interim application.

Furthermore, there is a significant difference between “core samples” and the compilation of sound recordings that constitute the field seismic data in this case. Although the decision is not entirely clear, it appears the judge is referring to a sample of the actual rocks from the ground, not an indirect measurement of those rocks using sound technology to create a recording or compilation of data. I agree that the rocks at the bottom of the sea are not copyrightable. 11 Industry Practice [ 114 ] It was interesting to read Mr.

Andrew Clifford Greenberg’s expert opinion about whether seismic data has copyright protection in the United States. He notes at the outset of his opinion at para 20 that “There exist no cases expressly deciding whether Seismic Data is copyrightable under the American Copyright Act.” GSI argues that until it commenced the actions herein, copyright in seismic data was acknowledged and respected by oil companies and government. This perspective is also affirmed in various codes of conduct, such as the APEGGA’s Guideline , and in the expert reports of Mr. Harper and Mr. Gill.

Many of the oil companies involved in these actions and the Government of Canada have entered into licence agreements with GSI expressly acknowledging that the seismic data and any reprocessed seismic data was copyright protected. Accordingly, it should come as little surprise that there is a dearth of judicial comment on the topic. C Conclusion on the copyright issue

[ 115 ] In conclusion, the raw or field seismic data is an original literary compilation work and the processed data is both an original literary compilation work and an artistic compilation work in the scientific domain. As such, they are protected under s 3 of the Copyright Act . For the reasons I have outlined, there is no need to resort to or rely on any presumption of copyright afforded in the Copyright Act.

IV Regulatory Regime [ 116 ] Having determined that copyright can subsist in GSI’s seismic material, the question then is whether the Defendants have breached the copyright in GSI’s seismic data by copying, or allowing others to copy, data that was submitted to various government entities pursuant to the Regulatory Regime. The seismic data in question was copied between 2007 and 2014, although it was collected from GSI, and by others whose data GSI purchased, as far back as 1982. The Defendants take the position that the Regulatory Regime is a full answer to the copyright infringement claims.

Very briefly, the parties’ positions are as follows. A Parties Positions: 1 GSI’s position [ 117 ] GSI submits that the Boards have implemented policies and procedures that have misappropriated its rights to the intellectual property in its seismic data. It submits that the Boards have no legislative authority under the Regulatory Regime to enact these policies and procedures and that they are of no force or effect. [ 118 ] GSI takes the position that the Regulatory Regime must be read in a manner that promotes coherence between the regime and the Copyright Act . It submits that this Court should not adopt an

interpretation of the Regulatory Regime that infringes on existing copyright, absent express language requiring such a construction. [ 119 ] Further, GSI argues the Boards’ policies and procedures respecting disclosure and copying of seismic data ignore the existing, statutorily mandated procedures for copying government documents set out in the Access to Information Act , RSC 1985, c A-1 ( the “AIA”) .

GSI takes the position that the Boards should be following the processes provided under the AIA in response to requests for data. [ 120 ] GSI relies on the principles outlined in the Supreme Court of Canada’s decision in Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010 -168, 2012 SCC 68 (“ Re Broadcasting ”) for the proposition that the policies set out by the Boards should be subordinate to the Copyright Act and the AIA , therefore can have no force or effect. 2 Defendants’ position [ 121 ] The Defendants argue that, properly construed, the Regulatory Regime confers jurisdiction on and authorizes the Boards to act as they did; more specifically, to copy geophysical data and disclose it to the public after the expiry of a privilege period.

The Boards have not simply implemented policies that, over time, have permitted disclosure; rather, they have the statutory authority to disclose and so, the Defendants argue, the principles in Re Broadcasting are not applicable. [ 122 ] The Defendants point to some interlocutory decisions that have interpreted the Regulatory Regime in their favour and they argue that these obiter comments should inform my conclusions.

These cases are Geophysical Service Inc. v Canada-Newfoundland Offshore Petroleum Board , 2003 FCT 507 (“ GSI v CNOPB ”), in which the court, at para 75, suggested that it was “entirely open” for the Newfoundland Board to make seismic information available to a requester after the expiry of the 5-year confidentiality period; Geophysical Service Inc. v Canada-Nova Scotia Offshore Petroleum Board , 2014 NSSC 172 at para 35 (currently under appeal) (“ GSI v CNSOPB ”), in which the court held that it was part of the governing authority’s rules that information was no longer confidential after a certain period of time and that regulations dealing with the copying of data were within the Board’s power; and, Geophysical Services Incorporated v TGS-NOPEC Geophysical Services , Texas District Court – March 30, 2015, civil action No. 14-1368 (“ NOPEC ”), in which the court found that the Regulatory Regime granted the Boards a broad authority to allow copying and distribution of seismic data, and that GSI, in effect, had given the Board an implied licence to do so.

This latter case is also under appeal. [ 123 ] The Defendants submit that the disclosure of seismic data in the manner permitted by the Regulatory Regime balances two competing policy objectives: the objective of protecting confidential information long enough to allow for recuperation of the expenses incurred in undertaking a non-exclusive seismic project against the objective of stimulating natural resource exploration and development by making such information publicly available.

These specific objectives, and the Regulatory Regime that puts them in place, override the general application of the Copyright Act . [ 124 ] The Defendants argue that GSI holds no independent rights in the data outside of those it obtained under the Regulatory Regime.

Its ability (and that of its predecessors) to gather data was subject to the Regulatory Regime at the outset, and any rights in the data exist only to the extent contemplated by that Regime – i.e. a time limited right to complete exclusivity with the reciprocal duty to allow disclosure thereafter. [ 125 ] The Defendants submit that the “rules of the regime” have been in place for decades. GSI knew the rules and must live by them.

The rules include the right to disclose and copy GSI’s data after the confidentiality period has expired; as such, there is no infringement under the Copyright Act . [ 126 ] The Defendants argue that the AIA does not apply to the disclosure provisions in the Regulatory Regime since the AIA ’s general purpose is to promote, not exclude, access to documents. If GSI’s argument was accepted, its data would never be disclosable, a result that flies in the face of the purposes and plain meaning of the Regulatory Regime and the AIA .

B Issue [127] This common issue in the Chief’s Order asks: What is the effect of the Regulatory Regime on GSI’s claims? [128] The Regulatory Regime contemplated in the Chief’s Order is attached at

Schedule B.

The Regime includes the various pieces offederal and provincial legislation that have regulated the Eastern and Northern Canadian offshore development of oil and gas since 1985.These areas shall be referred to as the “offshore and frontier lands”. [129] It is common ground that the Regulatory Regime as a whole consists of certain key aspects, namely: 1) Entities wishing to conduct seismic exploration in offshore and frontier lands must obtain authorization under the relevant legislation; 2) Authorizations are granted on the basis that any data collected pursuant to the authorization will be submitted to the appropriategoverning entity (regulator) under the applicable legislation; and, 3) The information provided to the regulator as a part of the permit/authorization process is considered privileged for a defined period. [130] I will mention the permit requirements only briefly later in these reasons.

They are not contentious and it is conceded that theycontain nothing to suggest that seismic data is assigned or licenced to the regulatory bodies. My emphasis will be on the submission anddisclosure requirements, as these go hand in hand in the various Acts and Regulations and are the key to determining the copyrightinfringement question. [131] To understand the effect of the Regulatory Regime on GSI’s claims and to address the arguments of the parties made in thiscase, I will consider three subsidiary questions: 1.

Is the Canada Petroleum Resources Act, RSC 1985, c 36 (2nd Supp) (the “CPRA”) silent with respect to the Boards’ ability tocopy seismic data? 2. Should the Boards have processed disclosure requests through the procedure set out in the AIA? 3. Have the Boards and recipients of seismic data breached GSI’s rights under the Copyright Act? C Decision in brief [132] The CPRA, properly interpreted, allows for disclosure without restriction after a defined period of time. It is a complete andspecific code that applies to all oil and gas property in the offshore and frontier lands, including seismic data.

Its provisions supplant anymore general pieces of legislation, such as the Copyright Act or the AIA to the extent that they conflict. Therefore, the Boards andrecipients of seismic data have not breached GSI’s copyright rights. Under the existing Regulatory Regime, it is not unlawful for theBoards to disclose data after the expiry of the privilege period in the manner that they have been doing. There is no need to resort to theprocedures set out in the AIA to respond to requests for data. D Subsidiary Questions 1 Is the CPRA silent with respect to the Boards’ ability to copy seismic data? i. Rules of statutory

interpretation [133] The parties have agreed the modern approach to statutory

interpretation applies, as articulated by the Supreme Court of Canadain Re Rizzo & Rizzo Shoes Ltd, (SCC), [1998] 1 SCR 27, in which the Court held, at para 21: ...Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizesthat statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [134] In Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 27 the court further commented on the application ofDriedger’s principle: …where the provision under consideration is found in

an Act that is itself a component of a larger statutory scheme, the surroundingsthat colour the words and the scheme of the Act are more expansive. … [135] And the court commented more recently, in Re Broadcasting, at para 12: … The entire context of the provision thus includes not only its immediate context but also other legislation that may inform its meaning(R.

Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 411). [136] In other words, in interpreting a legislative provision, the court must form an impression of the meaning of the text, taking intoaccount the purpose of the provision and all relevant contexts, including established legal norms. [137] Sullivan also suggests in her text Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014) at para9.65 that a review of the legislative history, tracing its evolution from inception, through successive amendments, to its current

formulation is another way of establishing legislative purpose: Tracing may reveal past decisions by the legislature to adopt a new policy or strike out in a new direction; it may reveal a gradual trend or evolution in legislative policy; or it may reveal the original purpose of legislation and show that this purpose has remained constant through successive amendments to the present. [Bold emphasis added.] a Statutory framework [ 138 ] The starting point to determine whether the CPRA is silent with respect to the Boards’ ability to copy seismic data is s 101. The

section is headed “Disclosure of Information.” The relevant portions read as follows (please see

Schedule C for the complete text of this section): Disclosure of Information Privileged information or documentation 101(2) Subject to this section, information or documentation is privileged if it is provided for the purposes of this Act or the Canada Oil and Gas Operations Act , other than

Part 0.1 of that Act, or any regulation made under either Act, or for the purposes of

Part II.1 of the National Energy Board Act , whether or not the information or documentation is required to be provided. Disclosure 101(2.1) Subject to this section, information or documentation that is privileged under subsection (2) shall not knowingly be disclosed without the consent in writing of the person who provided it , except for the purposes of the administration or enforcement of this Act, the Canada Oil and Gas Operations Act or

Part II.1 of the National Energy Board Act or for the purposes of legal proceedings relating to its administration or enforcement. ... Information that ma y be disclosed (7) Subsection (2) does not apply in respect of the following classes of information or documentation obtained as a result of carrying on a work or activity that is authorized under the Canada Oil and Gas Operations Act , namely, information or documentation in respect of ... (

d) geological work or geophysical work performed on or in relation to any frontier lands, (

i) in the case of a well site seabed survey where the well has been drilled, after the expiration of the period referred to in paragraph (

a) or the later period referred to in subparagraph (b)(

i) or (ii) or (c)(

i) or (ii), according to whether paragraph (a), (

b) or (

c) is applicable in respect of that well, or (ii) in any other case, after the expiration of five years following the date of completion of the work ; [Bold emphasis added.] [ 139 ] “Geophysical work” is defined in section 101(1) and includes the type of work performed by GSI.

Therefore, subsection (2) applies to make the information privileged, subject to the rest of the language in the section. [ 140 ] The parties agree that this privilege means that materials provided to the boards cannot be disclosed without written consent (except as provided under s 101(2.1), (5) (6.1) and (6.2), which are not in issue in this litigation).

Further, they agree that this privilege applies to the material deposited whether or not it is otherwise protected as confidential, patented, trademark protected or copyrighted. [ 141 ] The parties did not dispute that s 101(7) applies to the seismic materials submitted by GSI and that are now held at the NEB’s Frontier Information Office (the “FIO”) and with the provincial boards in question. The

interpretation differences between the parties arise in relation to what happens upon the expiry of the five-year privilege period. [ 142 ] Before turning to the various statutory

interpretation arguments I will review the legislative history since, in my view, it is key to determining the meaning of s 101(7). I will also outline the procedural history surrounding the collection, storage, and access of GSI’s sei

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