Survey Plan Copyright

[Ian Gillespie]

I wonder if anyone could point me in the diection of the legislation that vests copyright of survey plans in the crown.
I thought it might be the copyright Act but can't seem to find an applicable section.
Just for my own interest.

[Brent George]

I can only answer part of your question:-
r35(2) of the (good old) Survey Regulations 1972 says:
"After approval by the Chief Surveyor all plans become the property of the Crown"

(I recalled that this reference was in the Survey Regs somewhere - maybe I do not have early stages of CRAFT disease.)

The challenge now - and the main crux of your query - is to trace if/where that regulation transitions to...

Survey Regulations 1998:
r48(2) Custody of CSDs - "After its approval, a CSD must be retained in the Crown's custody." 

Rules for Cadastral Survey 2002/2:
r48(2) Custody of CSDs - "After its approval, a CSD must be retained in the Crown's custody."

Rules for Cadastral Survey 2010:
??
Cadastral Survey Rules 2021:
??

Added:  Perhaps the lack of transition of this rule means that the signing surveyor retains ownership; retains copyright; and so could rightfully charge a fee - or expect a fee to be paid - every time the plan is downloaded?  May be worth a legal opinion?

[Ian Gillespie]

Thanks for that information. I have been carrying on with the search but no luck so far.
The nearest I have come to it is this statement on the www.linz.govt.nz/copyright website:

"Crown copyright ©. All data and other material produced
by Toitū Te Whenua Land Information New Zealand and
published on linz.govt.nz or our subdomains constitutes
Crown copyright administered by Toitū Te Whenua Land
Information New Zealand."

[Ian Gillespie]

Well I thought I would ask LINZ if they had any information on who copyright of approved cadastral datset should be attrubuted.
Their reply is that "Crown copyright does not extend to the approved cadastral survey datasets"

I see that in 2018 a case on Ontario said that in their case copyright was with the crown because of a section in their copyright act.
www.mondaq.com/canada/copyright/851862/now-we-know-who-owns-the-copyright-in-a-registered-plan-of-survey

It would be interesting to know what the situation is here.

[Brent George]

Hmmmm....

The Ontario case/decision is interesting.  Their system of survey; digital plan; and digital land information record is very similar the NZ's.  So, in turn, you could expect a similar pathway when it comes to plan copyright - although this appears to not be the case with the answer provided by LINZ.  So the confusion continues (for me...)

I guess the nuances here are the differences between copyright; ownership; and custodianship.

My bush-lawyer comments:
- Copyright:  If this alludes to ownership (see below) of the data then that is one thing. If it alludes to acknowledgement of the source of the data, then that is another, and leads one down the path of custodianship (also see below), and implies certain referencing of the source of the information. 

- Ownership:  This is the tricky one.  A surveyor uses previously captured/defined data - by other parties as well as their own previous surveys - to produce their dataset.  They create a new dataset with added information (= rich data) that in turn adds value to the system (think connections to old marks not previously found; better or more accurately defined vectors (boundary and non-boundary) especially in rural areas; better or more accurate parcel areas that enhance land values or income (rates) where these things are based on land area; etc).  But ultimately, each approved plan/dataset would stand on its own as a land information record prepared by 'Bob the Surveyor' at a point in time, and who takes a legal responsibility for its correctness (to his/her grave and beyond...).  So it would be pragmatic to then conclude that 'Bob the Surveyor' therefore owns the dataset.

- Custodianship: This one is easy - with a CSD lodged and approved, and retained within the Landonline database, it is clearly being looked after and held and managed by LINZ as part of the authoritative record.  We may retain a copy of our datasets and others (that we have purchased), but these are now simply data assets that we store.

[So what are you working towards Ian?  What's your end goal?
- Is it a challenge to LINZ that relates to a claim for royalty payments for the use and sale of your approved Landonline datasets? (ie: does not apply to pre 300,000 series plans as these are identified to be the property of the Crown by the 1972 Regs).  Thus go down this line:-  Australian Surveyors Copyright and payment for survey plan sales...) 
- Or is it a card up your sleeve in case there is a challenge to a dataset of yours that you want to share - or ditch - responsibility for, noting that LINZ is the copyrighted party for it, and therefore the owner?  (You don't have to answer this... 

[Ian Gillespie]

It was some comments made at the 2023 ICS workshop that made me ask the original question of copyright. The workshop is certainly very stimulating.

The Australian copyright system was interesting to read about. Quite surprising how much the royalty payments amount to.

I do not think I would be personally interested in retaining copyright of CSDs and being paid a royalty for their use (although perhaps my employer might).
While there is no doubt that there is an element of intellectual property in a survey plan, I think that having it in the public domain is beneficial to us all.

Based on Brents examination of old survey regulations I wonder if it is something that has just not been considered post 2002 Regulations perhaps by accident.

It could be a situation that needs improvement with the Cadastral Survey Act along with improvement of Section 52.

Perhaps there could be a pathway for change based on quid pro quo.