Unanimous Appellate Decision Upholds Balance of Regulatory Regime as a Full Defence against Copyright Infringement

In Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125, the Alberta Court of Appeal chose to maintain the balance struck by the regulatory regime between the public’s interest in accessing offshore petroleum resources data and operators’ commercial interests.

Geophysical Service Incorporated (GSI) claimed copyright infringement in the use of seismic data they had collected and submitted to regulators in the process of applying to operate on government land. At issue were requests made by oil and gas operators (EnCana Corporation et al) to reproduce this data once it became publicly available in the course of the regulatory regime.

The regime protects submitted data as confidential for a period of five years, following which it becomes available for public viewing.

At trial (2016 ABQB 230), the Court found that GSI held copyright in the data; however, the Court determined that balance in the regime was a full defence to infringement. For more information on the trial decision, see the earlier article in the E-TIPS® newsletter.

A unanimous Court agreed that the regime is intended to strike a balance between “a variety of disparate interests, so as to achieve two policy objectives […] to attract investment by companies with capacity to acquire geophysical data regarding petroleum resources in the challenging frontier and offshore [and] to regulate dissemination of geophysical data at a pace that would broadly encourage further interest and study by the resource and investments industries, and academia, in frontier and offshore resource exploration and development, for the benefit of all Canadians” (paragraph 81 of the reasons).