 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;
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 !
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