Cadastral copyright in Australia in the digital age

The move from paper-based cadastral plans to structured cadastral data is one example of how data formats can erode protection of surveyors' intellectual property in Australia. Is there a better way to ensure that surveyors get just reward for their hard work?

Australian cadastral surveyors retain the intellectual property in their cadastral survey plans through the function of copyright. However, copyright is a legal protection that is being forced to play catch-up to technological change. A move from paper-based cadastral plans to structured cadastral data is one such change that draws into sharp focus the limitations of copyright as an intellectual property protection device. This article explores whether there is a better way to ensure that surveyors can get just reward for their hard work.

Since the introduction of the Torrens Title system in Australia in the mid-1800s, it has been necessary for the public to engage a cadastral surveyor to create almost all interests in land. The product of this survey, until recently, has been a paper plan (see Figure 1). To create the land interest, these plans are lodged with a registration authority. As the spatial extent of land interests are of general use to many professionals, the registering authority provides, for a fee, a copy of the surveyor’s plan. This arrangement had been a long-standing bone of contention with surveyors who, to do a good-quality survey, were forced to pay to get cadastral data that they may have produced in the first place. The status quo was upended by the 2008 case ‘Copyright Agency Ltd. v State of New South Wales’ [2008] HCA 35 (CAL case), when the Australian High Court determined that surveyors retained intellectual property in plans as they were artistic works protected by Commonwealth legislation. The registering authorities were forced to enter into licensing agreements to continue to sell the surveyor’s intellectual property.

How does copyright work in Australia?

In Australia, intellectual property is under the control of the Federal Parliament. The Copyright Act 1968 gives the author ownership of the copyright subsisting in a “literary, dramatic, musical or artistic work”. While the judgement in the CAL case saw the surveyor’s plan as an artistic work, it could equally have received protection as a literary one. Maps, charts, plans, tables and compilations all fall under this term. In addition to the type of work, there are two other elements that are critical to the consideration of copyright: the material form, and authorship.

Copyright law protects the expression of ideas, not the idea itself, so the protection starts when the idea is fixed in some material form. While the law has been updated in response to technological change, it inevitably lags that change as it depends on the disputes that are eventually put before the courts. Precedents have now established that digital files like PDF/TIFF are sufficiently fixed. However, dynamic displays of maps and spatial data are most probably not, although it is still a somewhat open question.

The current legislation only protects the original works produced by humans, presuming that only humans are capable of originality and creativity. That notion might need to be reconsidered soon, in view of the rapid advancements in generative artificial intelligence, for example. But, for the present, works such as phone directories that are created automatically from software do not deserve copyright protection. The key element for authorship appears to be the independent intellectual effort exercised by human agents in the work.

Machine-readable cadastral data

The Intergovernmental Committee on Surveying and Mapping (ICSM) released a national strategy for cadastral reform and innovation in Australia, titled ‘Cadastre 2034’. The strategy sees the possibility of reducing the time to create a land interest by using a seamless data flow from field observation to the registered interest. The need for paper and duplication is negated by surveyors moving to a digital database of survey plans in 3D. This vision and electronic conveyancing have been the drivers for requiring cadastral data in a flexible and electronic form.

The purported productivity gains come from putting the cadastral data in a form that is readily machine readable. Limitations in optical character recognition (OCR) mean that, even in an image format, it is very difficult to extract the essential boundary information from a traditional plan. ICSM created a national approach, ePlan, that uses a data model based on the international standard LandXML. In ePlan, the cadastral information is contained in a cadastral information file (CIF). Rather than being shown pictorially, the boundary information is held in a structured table (see Figure 2). However, while it is now entirely machine readable, the information can only be used by humans with the aid of specialist software. To service the non-surveying users of cadastral data, the registering authority uses an automated algorithm to render a pictorial representation. This is the object that has value to most users, not the CIF.  

Survey plan copyright under ePlan

The CIF or any other format will almost definitely be considered worthy of copyright. It is a literary work and a product of original productive thought in the selection of marks, boundaries or other cadastral data. No matter how it will be stored or transmitted to the registering authority, it will be in a fixed form. But it is not the CIF that has commercial value to the public, as it is unintelligible to them without specialist software. Having copyright of an item of limited commercial value is a Pyrrhic victory at best. The rendered plan is the item of value to less technologically sophisticated users.

Although the render is created from the CIF, it is created through computer code by way of a fixed, and almost certainly automatic, algorithm. Precedents in relation to authorship suggest that it is possible, if not probable, that the output will be considered authorless and hence not worthy of copyright protection. In the unlikely event that it does receive copyright protection, the copyright will not reside with the author of the CIF. In other words, the original surveyor – whose independent intellectual effort created the value – will miss out on the benefit of that effort.

Is copyright protection the best option?

Free-riding is a market failure caused by misalignment of the benefits from selling and the cost of producing. Copyright protection is a public policy intervention to redress this market failure. Copyright protection allows the author of a work a period in which to exploit their position as the sole person with the right to reproduce the work to recover the economic value they have produced. It is indeed one solution to the market failure, but not necessarily the only one.

Copyright, as an intellectual property protection mechanism, has been shown to be vulnerable to the fast pace of technological change. Being able to obtain financial gain from others’ intellectual and creative work without paying compensation would be commonly considered as dishonest. Competition that is contrary to honest practices in industrial and commercial practices has been defined as unfair competition by the World Intellectual Property Organization (WIPO). Unfair competition legislation exists in in Australia, but the Competition and Consumer Act 2010 focuses on protecting users rather than producers. However, legislation like this – which concentrates on the actions of market players, rather than on the technical description of the products – promises to be more responsive and technologically independent to protect intellectual property.  

Conclusion  

Since the CAL case in 2008, cadastral surveyors in Australia have been compensated whenever their intellectual property has been reproduced and sold to the public by registering authorities. There is a risk that the state and the surveying sector, in attempting to streamline the creation of land interests for the betterment of the community, may have inadvertently destroyed the value of that intellectual property for surveyors. Legislation protecting against unfair competition, rather than the current copyright regimes, may be the easiest long-term, technical fix to ensure that surveyors get just reward for their intellectual and creative work.

Acknowledgement

The authors would like to thank The Surveyors Trust for funding this work and its dissemination.

Further reading

The Copyright Law of Spatial Data by Kariyawasam, Palliyaarachchi & Campbell.