morning your honour's and may please the court my name is joel rothman and i represent the physical service in the appellant in this case do you physical service inc is also represented here in the court room by paul anderson the c e o of the company honour's is this court has observed previously copyright is a right against the world it is a right that comes from statute authorized by the constitution it is different from contract in that regard it's a right exclusive to the owner to in this case under six so to a prevent importation and as the court below correctly held on remand from this court's last decision in this case it is a right that is judged by us legal standards under the copyright act and that decision is not challenge here here we have an issue related to contract the district court heard by treating copyright as a contract instead of a right against the world the copyright act says that there is no license unless the defense prevails in its affirmative defense that the pla is presumed not to have granted a license when the plaintiff sues that the defendant has the burden of proof on license this applies to both express an implied license and as a result the then didn't hear t d s had the burden on each and every element of license as to express license there is no license expressly in the license a permit granted to my client to do exploration a permit that t t s is mentioned nowhere and there is no grant of license here there is no  s there are no express terms there is only this footnote referencing another document there is no language incorporating that other document by reference there is no basis to read the offshore exploration document which is a tap ten of the appendix there is no basis to read anything in this document is creating a license either the contract language that t g has points to and that the requirements and services of the federal agencies concerned or outlined in the publication offshore exploration that's the language from the two asterisk in the permit that is in the appendix at knowing well what does offshore exploration say about the requirements and services about the federal agencies concerned well what it says or what it says is that there are numerous federal agencies concerned that have numerous requirements they are not limited as the district court said in page ten to eleven of the district court's decision in fact they are almost unlimited the federal agencies concerned include the department of resource management the department of transportation including the canadian coast guard the department of environment of fisheries of defense of indian affairs of industry trade and commerce as well as other agencies including the canadian national revenue communications immigration and other subsidiaries of other departments mentioned in this this footnote referred to that supposedly creates a license when read in context and limited in scope refers to where to send notices about the work that my client was doing which this court discussed in its prior decision involved taking a boat and going back and forth across the ocean in this case the atlantic ocean with streamers projecting sound down below the surface of the earth in order to create seismic maps of course if you're doing that kind of work it would make sense that you give notice to for example the department of fisheries because the boats are going back and forth and they're pulling along trolling basically a long long lines that might interfere with fishing that makes sense as do all the other notices that this refers to but not a license also the notice concerns field work this is not field work and where it is placed if read properly in context shows its meaning it doesn't incorporate any contract terms it doesn't sig know that there are going to be certain requirements that are going to be agreed to and again it isn't with t d s it refers to a booklet that is more than a booklet it's a book it's over two hundred  informational material that just happens to include a reference on page sixty two to the fact that if someone wants a copy of prior seismic that is available and released on like what my client was doing which is creating speculative seismic which is undisputed purposes of licensing that is expansive to create and therefore it requires economically years of licensing in order to recoup the expense under the seismic data that your client produce copyright protection for seismic it is the st decision of any court in the world to our knowledge and judge idzik in that decision that was attached to our concludes that seismic lines and sections are copyrightable and protected by copyright under the canadian copyright act and since our country and canada both a seed to the barn convention one would expect that a court in this case when looking at the evidence would similarly conclude now answer to the question what if your answer if your honor is asking whether they were registered as opposed to whether their copyrightable the answer to that is that application was made to register the works and the copyright office refused registration so under section four hundred and eleven dollars a we can still file there's also a question about whether or not these are us works because for levon a of the copyright act only requires registration for us works not foreign works and we've alleged that in fact these were foreign works because they were created a private copyrighted or registered they a registration was applied for and refused allow those cases to proceed regardless of the registration status of the work what relief are you looking for in a district court what are you looking for we're we're we're looking for damages your honor because the damages the damages that we've alleged or or in excess of a one million dollars based upon the value of the license that would have been granted to the defendant they requested one for the material that instead they copied without license and imported into the us in addition we would be intitled to other damages but we haven't even gotten the amount of seismic material as measured in kilometers and so we would be able to show a trial that the works imported were of a certain amount that we would have licensed these for x amount based on the amount of kilometers imported just one job this we're talking right now about a single set of seismic from a single source extensive survey and it's huge because it covers thousands of square kilometers and  so but yes this is expensive to license because this is a licensing model that is that my client follows and other and other companies t t s included who is a ours follows this model it costs a lot to produce this material and in order to recoup that investment it can be licensed over many many years in order so that the  company can earn a profit from this exploratory work the the implied license to has no basis and there there is no evidence other than the essentially it's a dixit of a gentleman who thirty years ago worked at the same institution that existed under a prior regime and from the standpoint of summary judgment there are hotly contested and disputed facts here that the district court completely ignored the it's also worth mentioning i think that the decision was rendered very quickly we basically had an argument and then had a decision you know within one business day later and we never had an opportunity in the district court and district court completely overlooked all of the evidence what's that you don't have to use ok thank you and eighty three when it submitted seismic data to the canadian government that that data could be copied and distributed and and the issue can be resolved from the plain language of the permit if if if yes this is it's already to be able to shoot seismic data offshore in government and canadian government water and it's required by the canadian regulatory regime to get this permanent and the plain text of this permit along with the publication offshore exploration can resolve this issue for the court there is no dispute that the offshore programme notice geophysical is permanent and this case clearly references offshore exploration and there cannot be a dispute that offshore exploration clearly provide information that size that rd parties can obtain copies of that data once they stop story confidentiality period has been as has expired so whether this court considers this under an  an express license theory or an implied license theory the result is still the same geophysical conveyed permission to the right to copy and distribute the data at the end of the confidentiality period the district court found st found for t j s on summary judgment on the express and that implied license to carry the record conclusively shows that the offshore programme notice has clear reference to offshore exploration and contains incorporating language that language is the requirements and services of the federal agencies concerned are outlined in offshore exploration the reference is clear the reference is clear to offshore exploration and as judge rosenthal properly found under this court's precedent and one beacon that the elements are not there is a clear reference to offshore exploration just physical was clearly on notice to go look out offshore exploration there's there's no doubt they were on reasonable notice that that document existed and they manifested assent to that document when they handed in the permit to the government seeking authorization and the district court applied that test and found that offshore exploration and its requirement to allow rd parties to obtain copies of that data at the end of the expiration period was incorporated into the offshore program notice and i would point out that the district court did not have before it arguments related to incorporation by reference to physical did not argue incorporation by reference at the district court but regardless on the merits this language and the offshore program notice is very similar to this court's holding in our side and our side the incorporation language was terms and conditions are based on here are language is requirements and services are outlined and there is no suggestion whatsoever that this footnote to the to the text of the permit is narrowed and limited to the notification provision there's absolutely no sound reading the incorporating reference here then you have to read out words you have to read out the words and services because you can't haven't noticed requirement and a services notice which is what would be required if this was limited sol to notice and also it requires the adding of the word other because in the notice provision it's narrowly tailored to the other federal agencies concerned and that's because the program  itself gives notice to the resource management branch which is the branstad actually governs the submission and release of data so in order to make it consistent that language would have to reach to the other federal agencies concerned and it does not and therefore we submit that the district court correctly found that offshore exploration was incorporated into the offshore program notice and not created and expressed a license to copy and distribute the data at the end of the confidentiality period wires or confidentiality the confidentiality period in the event your honor is part of the regulatory regime it's part of the idea of being able to balance the needs of these companies that are shooting seismic data to allow them the time to recoup the investment as opposing counsel is discussing but at the same time it allowed for the government stated policy of wanting to increase and enhance offshore exploration there's a ninety mm seventy six dollars white paper where the government outlined this initiative they outlined a national energy strategy where they side we have a need to know we need to know what are offshore resources are and aren't and are other federal lands and because of that we need to get this data out to tender streams so that we can understand our resources and understand if we have self reliance so this was all part of the government's purpose and and not do these regulations to begin with turning now to implied license the record evidence is conclusively establishes that the totality of the circumstances and the totality of the party's conduct created in a part of license to copy and distribute there is significant evidence in the record about the government's busy intent to copy and distribute this data at the expiration of the confidentiality period and i submit to this court that there is absolutely no evidence in the record to suggest that it wasn't mr rothman spoke about seismic or speculative seismic data and how that's treated differently there's absolutely no evidence in this distinction and the laws there is no distinction in the regulations between exclusive and speculative data it was not treated differently to his knowledge and in fact we know it wasn't treated differently because in the january  eighty three report that the canadian government sent out it had six hundred and ninety eight geological programs and you had physical programs that had been released at that time that were available for copying and fourteen of those were geo physicals speculative data so we know for a fact they were copying and releasing the data as mentioned geophysical has tried to avoid this result by claiming that speculative data is treated differently but it's simply not and there's absolutely no evidence geophysical submitted as evidence in this case and how that impacts speculative data but it does not go at all to what the kenyan government was doing in nineteen million twenty one thousand nine hundred and eighty three finally she physical has suggested that somehow the importation of this data into the us would not have been granted through a license and that is simply not correct there is absolutely no evidence in the record that the canadian government was not copying and distributing this data outside of canada and fact mr harrison testified that that would undercut the entire policy of the regulatory regime and  explore offshore canada so there is nothing in the laws and nothing in the regulations that prevents the canadian government from sending this seismic data once the confidentiality period has ended to the united states submitted this data to the canadian government with the knowledge or at least should have a new word because it's an objective intent standard they should have known that the government was going to copy and release that and they conveyed a license to do  this is not a case your honour's about confidentiality this is copyright infringement case confidentiality is not relevant what is relevant to copyright infringement copying there is disputed evidence throughout this record regarding what she physical knew and what it knew when the affidavits of mr speculative seismic was understood to be different in fact mr harrison my friends the clients expert testified that speculative seismic was dealt with in a discretionary manner with regard to whether it was released but even if the issue of whether it could be released is relevant which we dispute because it again isn't about confidentiality it's about are you entitle to go to the library and copy wholesale huge volumes of data and information and then ship of those to the u s at the request of the euston company that is copyright that isn't the question of confidential the book take it on the plane and go to the us and benefit from it we all the the information according to the regulations was kept in a special room at these different petroleum boards and you could go checked out if you will i mean i clearly got a copy they didn't sneak in the middle of the night and steal a copy true they got a copy what for what they did was they asked the board to send it to a copy shop down the street in the copy shop copied it shipped it to euston and then gave the original back to the board and the board of the board do it and in fact the evidence has been that the board warned recipients that they might be violating intellectual property laws when they did this and so we have a situation what needed that there was discretion to withhold this same information and not provide it and the argument then that you know my client knew that my client objectively should have understood that the argument is disputed by their own expert who recognized that we had as our other affidavits indicated a right to expect that this information would be respected and not released for even the canadian court looking at the issue of whether or not a license expressed or implied it was granted said that it was not in our brief opening brief at forty two the court looked at the issue of whether speculative data was maintained this confidential in the court found that in fact there had been a policy where it was maintained in perpetuity in some cases the court looked at this issue of implied