Intellectual Property Litigation

Intellectual Property Litigation is generally understood to comprise the provision of advice and representation, whether by way of negotiation, judicial proceedings, alternative dispute resolution, mediation, or arbitration, in all matters relating to contentious proceedings (either administrative before federal officials or tribunals or judicial before federal or other courts) involving rights respecting patents, trademarks, official marks, copyright, moral rights, industrial designs, brand names, trade dress, personality rights, trade secrets, and data protection; urgent interlocutory applications including injunctions, “Anton Piller” orders, etc. respecting alleged infringement of intellectual property rights; international intellectual property litigation; and other such matters.

Seismic Data Copyright

The Alberta Court of Queen’s Bench April 2016 decision in Geophysical Service Incorporated (GSI) v. Encana Corporation is the first case in the world that has ever found that copyright exists in seismic data. But the decision also held that the existing regulatory regime governing federal lands in the north and the east coast creates an exception to copyright protection, so that once the privilege period expires over seismic data governed by the regime, the owner no longer has exclusive right to control the public dissemination of its data.

Under the regulatory regime, companies like GSI must submit seismic data to various federal and provincial regulators and other governmental entities in return for permission to operate on government land. The data remains confidential for five years, after which the regulatory regime provides that the public can access the information. In practice, governments have kept non-exclusive data confidential for 10 years.

GSI claimed its consent was required to the use of the seismic data even following the expiration of the confidentiality period. The company sought more than C$2 billion in damages. Some 25 defendants, including a wide array of industry players and government entities, responded that copyright did not exist in the data and that, in any event, the regulatory regime was a complete answer to the copyright infringement claims.

Justice Kristine Eidsvik concluded that raw and processed seismic data were original literary compilations. Processed data was also an artistic compilation in scientific form. “This finding is significant to industry participants as it applies to the treatment of seismic data obtained from non-exclusive seismic companies,” Killoran said. “The judgment serves to confirm as valid a contractual term often found in seismic license agreements that expressly acknowledges that copyright over seismic data is held by the licensor.”

Eidsvik went on to conclude that the Regulatory Regime’s specific provisions, which permit disclosure after the defined period of time, override the more general provisions of the Copyright Act. The decision affirms the existing understanding in the oil and gas industry, namely, that once the privilege period expires over seismic data governed by the Regulatory Regime, the owner no longer has exclusive rights to control the public dissemination of its data.

Not everyone agrees with this aspect of Eidsvik’s ruling. Writing in the University of Calgary Faculty of Law’s blog, Professor Nigel Bankes argues that it is unnecessary to erase all property rights in order to give effect to the regulatory regime. Allowing access to the data after the confidentiality period has expired is not tantamount to allowing someone to copy the materials or to facilitate illegal copying.

Indeed, Eidsvik’s conclusion that the regulatory scheme creates something akin to a compulsory licensing regime is simply an “unsupported assertion,” according to Bankes. “The [regulatory scheme] does not expressly address data copying and it certainly does not create an express compulsory licensing scheme that makes law what would otherwise be unlawful (the definition of a license),”1 he writes.

Eidvik’s decision in this case was unanimously affirmed by the Alberta Court of Appeal and, on November 30, 2017, the Supreme Court of Canada denied GSI’s application for leave to appeal the decision.

  1. Bankes, Nigel. “Expiration of Confidentiality Also Gives Boards the Liberty to Copy and Distribute.” April 27, 2016.