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A Surveyor's Opinion Is Intellectual Property

Derek G. Graham OLS (Cadastral) OLIP

The music of Beethoven and Straus, the paintings of A. Y. Jackson of The Group of Seven and the maps of the early surveyor and explorer David Thompson are works of art and, as such, are intellectual property.

Today, professional surveyors (licensed Ontario ] Land Surveyors) , architects and engineers also produce volumes of intellectual property in the format of drawings that are 'artistic works' as defined under the Definitions Section 2 of the Federal Copyright Act

2. In this Act,

"artistic work" includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works;

Section 5. (1) of the Federal Copyright Act (http://laws.justice.gc.ca/en/C-42/index.html) outlines works in which copyright may subsist Conditions for subsistence of copyright

This clearly includes a cadastral survey plan, such as is found in the form of a Surveyor's Real Property Report (SRPR). The SRPR was formerly known as a ‘building location survey’ or ‘mortgage survey'. A Surveyor's Real Property Report (SRPR) is a Canada wide, provincially standardized opinion format by a professional surveyor. In Ontario, it is set out in law by Regulation. It illustrates a surveyor's opinion of the extent of title. “Title” is ownership of real property.

The SRPR is a timely document giving a professional opinion as of a particular time. It is good only for that time and not beyond, or it will be misleading and potentially fraudulent to use based upon consideration of the “Duty of Care” aspect set out in the “Anns Test.” http://www.bailii.org/uk/cases/UKHL/1977/4.html and subsequent Canadian case law.

Any other type of map, sketch or drawing prepared by a surveyor representing her/his professional opinion involving real property matters is also copyrighted material.

Copyright is automatically acquired with the creation of the plan. Today, most surveyors indicate on their plans the retention of copyright with the use of the universal copyright symbol .

Persons or entities may feel that, as they have a drawing in their hands, that it is ‘open season’ to use the drawing for their or any other parties benefit.

It is not so. The intellectual property aspect of the drawing is separate from the actual medium carrying or displaying the intellectual property.

The professional surveyor retains copyright on all drawings or plans s/he prepares unless it is specifically alienated in writing. This puts all on good and proper notice of such.

What then is 'fair use' of a surveyor's opinion? Under fair use, a surveyor has the right to use the information from a copy of a plan in the preparation of another plan. A lawyer has the right to use a current copy of a plan to do title research at the time of the preparation of the SRPR as may be required for his/her opinion of title.

The client has the right to use a “current to the time of the preparation of the plan” copy of the plan for its own private use in accordance with the purpose of the plan, without infringing copyright.

Valid Copy

(3) A print of a plan of survey is not a valid copy unless it bears the embossed seal of the licensed member who signed the plan or the embossed seal of a licensed member employed by the corporation or public agency responsible for the plan's preparation or the corporate seal of the corporation holding a certificate of authorization that was responsible for the plan's preparation. R.R.O. 1990, Reg. 1026, s. 29 (3).

The surveyor will supply sufficient embossed copies of the plan and report to the original client, so that the client may complete the requirements of the current transaction. Any unsealed, out-of-date copies [i.e. photocopies] in circulation should not be accepted as valid documents as they are misleading and are fraudulent.

A common test of breach of copyright is the copying and the reuse 'for benefit'. Such photocopying and reuse of the intellectual property contained within a SRPR “for benefit” beyond the time of the transaction is illegal.

Is there a benefit both physical or monetary? Yes, this appears to be so, as supported by the provisions of the Canadian Copyright Act and case law.

A person does not have the right to copy and use the SRPR in subsequent dealings.

No one other than the surveyor who prepared the plan, has the right to alter the plan in any way.

No third party has the right to use a plan for a use not intended for the original purpose of the plan. To do so is fraudulent.

When dealing with real property transactions, prudent persons will ask a professional surveyor for a Surveyor’s Real Property Report as set out in law under the Surveyors Act’s Ontario Regulation 42/96 and 525/91.

The case of Ontario v. Syvan Developments Ltd ., 2006 CanLII 32430 (ON S.C.) http://www.canlii.org/en/on/onsc/doc/2006/2006canlii32430/2006canlii32430.html is an excellent illustration of the litigation that happens when a person uses a surveyor’s plan beyond the time of its date.

Various Planning Act Applications such as for Minor Variance, Consents to Sever, Minimum Distance Separation usually require current drawings by professional surveyors.

Some may try to use an old, out of date drawing. This is not a good idea as seen in the Syvan matter.

The information on a surveyor’s drawing is information key to many Planning Act applications. This being so, many Tribunals such as the Ontario Municipal Board, Committees of Adjustment or Land Division Committees now insist on a current sealed drawing or sketch by a professional surveyor so the Committee has all the facts in front of it to make an informed decision.

Some people may decide that they can use an old drawing or SRPR and overlay approximate field measurements to fulfill the municipality's requirements for a sketch. Not only is this approach risky, misleading and fraudulent, it is a violation of a surveyor's copyright too.

A surveyor's opinion expressed graphically, or in report form, can be worth a great deal, considering the comfort value it adds to an owner's assets and the costly litigation that such products are designed to avoid. The SRPR gives the best possible professional comfort level that What You See Is What You Get or WYSIWYG !

© 2012 Derek G. Graham Limited.