By: Gordon Jaremko
Former editor of Oilweek and a member of the Canadian Petroleum Hall of Fame.
Court raises respect, but not pay, for geoscientists
The Court of Queen’s Bench of Alberta says a specialty regarded for generations as a geek branch of industry – nicknamed human computers and doodlebuggers – deserves greater respect. A spring judgement declared geophysicists’ portrayals of subterranean structures worthy of copyright as creative masterpieces.
But the decision stopped short of awarding a pay increase. Earth scientists still have to settle for their costly work being defined as public art and made available for others’ use, free of charge, to the degree that government control of natural resources includes compulsory disclosure to regulatory agencies for release to prospectors.
Oil and gas exploration firms hung on to free access to Canadian offshore and northern geological treasure maps in the landmark court ruling.
Federal disclosure requirements, under legislation and regulation dating back to 1950, trump copyright recognition, ruled Justice Kristine Eidsvik.
Geophysical Service Inc. (GSI) immediately moved to overturn the verdict in the Alberta Court of Appeal.
Eidsvik’s verdict covered 25 lawsuits that GSI launched against regulatory agencies, seismic information distributors and a roll call of producers from Encana, Devon and ExxonMobil to Husky, Statoil and Suncor.
GSI, a private venture owned by Calgary’s Einarsson family, claimed ownership of Canada’s largest seismic data warehouse. The treasures include a multi-million dollar library of information about Atlantic seabed oil and gas prospects.
After a lengthy trial, Eidsvik agreed that the status quo is hard on geophysical surveyors, but the case suggested that the crusade for permanent intellectual property rights, to keep results of the science confidential far into the future and always charge industry for viewing the reports, belongs in the political arena.
“The regulatory regime has confiscated the seismic data created over the offshore and frontier lands, and the Canadian Petroleum Resources Act is not apologetic for it – indeed, it makes clear that there is no compensation for any confiscation,” said the verdict.
The regime requires surveys to be filed with the Nationals Energy Board and the Nova Scotia and Newfoundland offshore petroleum boards. The agencies make the costly reports available for free after protected periods of five to 10 years. The system is designed to help attract industry activity, starting with requests for leases of drilling prospects. A pure copyright regime would enable survey firms to demand payment for 50 years or longer.
Eidsvik noted that parliament heard the earth scientists’ commercial concerns while enacting the mid-1980s legislation that established the current disclosure code.
“There is a great deal of expense, effort and risk in developing speculative seismic data for license, yet the cost of duplicating the produced data is very small,” Eidsvik observed.
Her verdict included a quotation from a 1980s expert witness who described an early version of the property rights crusade that had its day in her courtroom 30 years later.
“This becomes an emotional issue when upper management of a seismic survey house is approached and asked to spend so many millions of dollars on a survey, and there is an element of chance in terms of making their money back. They know full well that the government will release the a in five years and that, after three or four years, potential survey buyers will realize that in another year or two they will have free access to that information,” the expert told Parliament.
“GSI was fully aware that some of its data would have to be summited and that it would be made public when it undertook its work on these offshore and frontier lands,” said the Queen’s Bench judge in her 74-page verdict. “It is perhaps true that the provisions for submission have become more onerous over time and that the quality of the materials submitted have become better, further encroaching on GSI’s ability to license its data to others, but the provisions have always been there. Unfair as this may seem, it is not for this Court to re-write the legislation comprising the regulatory regime.”
GSI insisted it only filed its material with Canadian regulatory agencies after being assured its intellectual property rights would be respected.
GSI said it has uncovered “evidence of hundreds of instances where the offshore boards were making copies for third parties, scanning data, disclosing image files, sending data to be copied on behalf of third parties and further disclosing data to third parties, undermining the commercial value.”
The Queen’s Bench verdict assures Canadian and international gas and oil hunters that, at least for now, they are complying with the accepted status quo. It will be up to higher courts, or maybe parliament, to say otherwise about the regulatory agencies.