Geophysical Service Inc v Antrim Energy Inc, 2015 ABQB 482

On a motion for summary judgment, the Alberta Court of Queen’s Bench dealt with the issue of whether Antrim Energy Inc.’s (“Antrim”) copying of Geophysical Service Inc.’s (“GSI”) seismic data was copyright infringement even though the copy that was made was blurry and completely unusable.

The seismic data at issue consisted of two lines of data produced by GSI out of a collection of sheets of data the GSI obtained from a public database. [11] The (unrebutted) evidence given by the GSI employee who obtained the data was that it was of such poor quality that he merely filed it in a storage cabinet and forgot about it. [11]

Antrim first argued that it was exempt from copyright infringement under Section 32.1 of the Copyright Act, which provides an exemption for copying done pursuant to the Access to Information Act (“ATIA”) or “any like Act”. [26-31] However, the data was not obtained under the ATIA. It was obtained under the Newfoundland Accord Acts [4], which could not be considered a “like Act”. [39-41] This preliminary defence was not determinative of the summary judgment motion. [41]

Antrim then argued that, although it did make a copy of the GSI data, the copy was so illegible that it could not have been an infringement. [51] The Court was not provided with precedent involving cases where copyrighted material was copied, but in poor quality, [44] so the Court decided the issue simply on the fact that Antrim admitted that the data was copied. [51] The fact that it received a copy that was blurry and it determined was useless for its intended purposes was not determinative. [51] Even when the Court loosely applied the factors that go towards determining infringement where only a portion of an author’s work has been copied, the Court still concluded that there was infringement. [52]

Thirdly, Antrim argued that since GSI suffered no damages, and since Antrim received no value from the infringement, the claim should be dismissed or at least limited to the maximum statutory damages. [62] The Court replied that neither of these factors was determinative of whether damages could be awarded. [68-69]. Given the fact that at one point Antrim approached GSI for the same data, but rejected GSI’s offer to license the data because of the high price, a starting point for damages could still be the usual cost of the license. [68]

Having rejected each of Antrim’s arguments on summary judgment, the matter was remitted to trial. [74]

Commentary

It is important to note that it was simply assumed on this motion that copyright subsisted in the data that was copied. [19] That issue was still live in other cases involving GSI against other defendants.

It is unfortunate that the decision did not go into more discussion about whether the blurry copy that was made even constituted a “copy” in the first place. The furthest the Court delved into this issue was to quote the Black’s Law Dictionary definition of a “copy”: “an imitation or reproduction of the original”, and to note that a colourable imitation has been held to be something that has been altered but is recognizable as against the original. [47] However, the Court did not rely on the blurry copy constituting a “copy” to decide the case. It focused on the fact that Antrim had already admitted that it had directed a copy to be made by the public authorities. The fact that the copy was blurry and useless was not determinative. [51]