Seismic company GSI has sued a lot of organizations recently for sharing its copyrighted seismic data, undermining its business. A recent court decision found that seismic data is indeed copyrightable, but Canadian petroleum regulations can override the copyright. This allows data to be disclosed by the regulator and copied by others — made public, effectively.
Seismic data is not like other data
Data is uncopyrightable. Like facts and ideas, data is considered objective, uncreative — too cold to copyright. But in an important ruling last month, the Honourable Madam Justice Eidsvik established at the Alberta Court of the Queen's Bench that seismic data is not like ordinary data. According to this ruling:
...the creation of field and processed [seismic] data requires the exercise of sufficient skill and judgment of the seismic crew and processors to satisfy the requirements of [copyrightability].
These requirements were established in the case of accounting firm CCH Canadian Limited vs The Law Society of Upper Canada (2004) in the Supreme Court of Canada. Quoting from that ruling:
What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.
There exist no cases expressly deciding whether Seismic Data is copyrightable under the American Copyright Act [in the US].
Fortunately, Justice Eidsvik added this remark to her ruling — just in case there was any doubt:
I agree that the rocks at the bottom of the sea are not copyrightable.
It's really worth reading through some of the ruling, especially sections 7 and 8, entitled Ideas and facts are not protected and Trivial and purely mechanical respectively.
Why are we arguing about this?
This recent ruling about seismic data was the result of an action brought by Geophysical Service Incorporated against pretty much anyone they could accuse of infringing their rights in their offshore seismic data, by sharing it or copying it in some way. Specifically, the claim was that data they had been required to submit to regulators like the C-NLOPB and the C-NSOPB was improperly shared, undermining its business of shooting seismic data on spec.
You may not have heard of GSI, but the company has a rich history as a technical and business innovator. The company was the precursor to Texas Instruments, a huge player in the early development of computing hardware — seismic processing was the 'big data' of its time. GSI still owns the largest offshore seismic dataset in Canada. Recently, however, the company seems to have focused entirely on litigation.
The Calgary company brought more than 25 lawsuits in Alberta alone against corporations, petroleum boards, and others. There have been other actions in other jurisdictions. This ruling is just the latest one; here's the full list of defendants in this particular suit (there were only 25, but some were multiple entities):
- Devon Canada Corporation
- Statoil Canada Ltd.
- Anadarko Petroleum Corporation
- Anadarko US Offshore Corporation
- NWest Energy Corp.
- Shoal Point Energy Ltd.
- Vulcan Minerals Inc.
- Corridor Resources Inc.
- CalWest Printing and Reproductions
- Arcis Seismic Solutions Corp.
- Exploration Geosciences (UK) Limited
- Lynx Canada Information Systems Ltd.
- Olympic Seismic Ltd.
- Canadian Discovery Ltd.
- Jebco Seismic UK Limited
- Jebco Seismic (Canada) Company
- Jebco Seismic, LP
- Jebco/Sei Partnership LLC
- Encana Corporation
- ExxonMobil Canada Ltd.
- Imperial Oil Limited
- Plains Midstream Canada ULC
- BP Canada Energy Group ULC
- Total S.A.
- Total E&P Canada Ltd.
- Edison S.P.A.
- Edison International S.P.A.
- ConocoPhillips Canada Resources Corp.
- Canadian Natural Resources Limited
- MGM Energy Corp
- Husky Oil Limited
- Husky Oil Operations Limited
- Nalcor Energy – Oil and Gas Inc.
- Suncor Energy Inc.
- Murphy Oil Company Ltd.
- Devon ARL Corporation
Why did people share the data?
According to Section 101 Disclosure of Information of the Canada Petroleum Resources Act (1985) , geophysical data should be released to regulators — and thus, effectively, the public — five years after acquisition:
(2) Subject to this section, information or documentation is privileged if it is provided for the purposes of this Act [...]
(2.1) Subject to this section, information or documentation that is privileged under subsection 2 shall not knowingly be disclosed without the consent in writing of the person who provided it, except for the purposes of the administration or enforcement of this Act [...]
(7) Subsection 2 does not apply in respect of the following classes of information or documentation obtained as a result of carrying on a work or activity that is authorized under the Canada Oil and Gas Operations Act, namely, information or documentation in respect of
(d) geological work or geophysical work performed on or in relation to any frontier lands,
(i) in the case of a well site seabed survey [...], or
(ii) in any other case, after the expiration of five years following the date of completion of the work;
As far as I can tell, this does not necessarily happen, by the way. There seems to be a great deal of confusion in Canada about what 'seismic data' actually is — companies submit paper versions, sometimes with poor processing, or perhaps only every 10th line of a 3D. But the Canada Oil and Gas Geophysical Operations Regulations are quite clear. This is from the extensive and pretty explicit 'Final Report' requirements:
(j) a fully processed, migrated seismic section for each seismic line recorded and, in the case of a 3-D survey, each line generated from the 3-D data set;
The intent is quite clear: the regulators are entitled to the stacked, migrated data. The full list is worth reading, it covers a large amount of data. If this is enforced, it is not very rigorous. If these datasets ever make it into the hands of the regulators, and I doubt it ever all does, then it's still subject to the haphazard data management practices that this industry has ubiquitously adopted.
GSI argued that 'disclosure', as set out in Section 101 of the Act, does not imply the right to copy, but the court was unmoved:
Nonetheless, I agree with the Defendants that [Section 101] read in its entirety does not make sense unless it is interpreted to mean that permission to disclose without consent after the expiry of the 5 year period [...] must include the ability to copy the information. In effect, permission to access and copy the information is part of the right to disclose.
So this is the heart of the matter: the seismic data was owned and copyrighted by GSI, but the regulations specify that seismic data must be submitted to regulators, and that they can disclose that data to others. There's obvious conflict between these ideas, so which one prevails?
Where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the more general: it does not matter which was enacted first.
Quoting again from the recent ruling in GSI vs Encana et al.:
Parliament was aware of the commercial value of seismic data and attempted to take this into consideration in its legislative drafting. The considerations balanced in this regard are the same as those found in the Copyright Act, i.e. the rights of the creator versus the rights of the public to access data. To the extent that GSI feels that this policy is misplaced, its rights are political ones – it is not for this Court to change the intent of Parliament, unfair as it may be to GSI’s interests.
[...the Regulatory Regime] is a complete answer to the suggestion that the Boards acted unlawfully in disclosing the information and documentation to the public. The Regulatory Regime is also a complete answer to whether the copying companies and organizations were entitled to receive and copy the information and documentation for customers. For the oil companies, it establishes that there is nothing unlawful about accessing or copying the information from the Boards [...]
So that's it: the data was copyright, but the regulations override the copyright, effectively. The regulations were legal, and — while GSI might find the result unfair — it must operate under them.
The decision must be another step towards the end of this ugly matter. Maybe it's the end. I'm sure those (non-lawyers) involved can't wait for it to be over. I hope GSI finds a way back to its technical core and becomes a great company again. And I hope the regulators find ways to better live up to the fundamental idea behind releasing data in the first place: that the availability of the data to the public should promote better science and better decisions for Canada's offshore. As things stand today, the whole issue of 'public subsurface data' in Canada is, frankly, a mess.