Geophysical Service Inc. (the “Applicant”) brought a motion for an interlocutory injunction requiring CNSOPB (the “Respondent), to remove from its websites materials over which the Applicant claims copyright pertaining to its work product from seismic surveys it conducted. In 2013, the Respondent published on its website and in paper format two calls for bids (the “Call for Bids”). Among the information contained in the Call for Bids were 12 figures created by the Respondent based on information submitted to it by various operators, including the Applicant. The Applicant contended that the publication of the figures on the website and by other means infringed its copyright.
The Court considered the three-prong test from RJR-MacDonald. With respect to whether the proceeding raises a “serious question to be tried”, the Court considered both (i) establishing copyright and (ii) infringement. The Court held that from the Applicant’s point of view, there remains at least a serious issue over copyright ownership given all the facts that otherwise demonstrate the Applicant’s ownership of the data and major role in its collection and compilation. With respect to infringement, the Court held that there appears to be no serious issue about the alleged infringement by the Respondent, given the lack of any objective similarity between the infringing work and the copyrighted work, or at least a substantial part thereof.
With respect to the consideration of irreparable harm, the Court noted that the figure at issue was the result of extensive reworking and adaptation of materials, and accordingly, the Applicant “must demonstrate by clear and non-speculative evidence that it will suffer irreparable harm, not compensable in damages, between [now] and the outcome of trial if the injunction is not granted.” The Court agreed with the Respondent that the Applicant failed to provide such clear and non-speculative evidence of damage. There was no statistical evidence or sales information that would permit some suggestion of a correlation between conducting the Call for Bids and the extent of licensing of the Applicant’s seismic data information. In that regard, the Court held that the Applicant had not demonstrated that it would sustain irreparable harm were the injunction not ordered.
With respect to the balance of convenience, the Applicant argued that because no bids were received as part of the Call for Bids, there is no inconvenience to the Respondent in being required to remove the alleged infringing materials from the bid process. The Respondents, on the other hand, argued that there would be significant inconvenience if it was precluded from continuing to use operators’ seismic data as part of future calls for bids. The Court concluded that the Applicant had made speculative and largely unsupported potential loss claims and, as such, priority must be given to attempts to achieve the Respondent’s mandate for the benefit of Canadians.
On these bases, the Court dismissed the Applicant’s motion for an interlocutory injunction, and awarded costs to the Respondent.