Your Consultant Commissioned the Drone Survey. Who Owns the Data

A lot of the aerial capture on Alberta sites is not commissioned by the site owner. An engineering firm flies a site as part of a design package. An agronomist includes imagery in a season's service. A broker or appraiser orders capture for a listing. A general contractor flies the job monthly and puts it in a progress report. In each case the owner of the land and the asset receives a deliverable and reasonably assumes the data behind it is theirs.

Usually it is not, or at least not in the way the owner imagines. The arrangement is two contracts deep. The owner has an agreement with the consultant. The consultant has a separate agreement with the drone operator. Those two agreements were written for different purposes and neither one necessarily mentions the other. The owner's rights to the capture of their own site are whatever survives that chain, and the honest answer is that most of the time nobody checked.

This is not a complaint about consultants. It is a structural result of how subcontracted work is papered. It only becomes a problem later, and it is almost free to fix at the front.

The chain, and where it breaks

Start with what each link actually says:

• Your agreement with the consultant. It describes a service and a deliverable. A design, a report, an opinion, a recommendation, a set of drawings. It rarely itemises the underlying data collected along the way, and it rarely distinguishes between data the consultant generated and data the consultant bought from a subcontractor.
• The consultant's agreement with the drone operator. It describes a capture and a set of files, and it grants the consultant rights to use them. Whether those rights can be passed on to you depends entirely on how that agreement is worded. If it is silent, it is not safe to assume they can.
• The gap between them. The consultant cannot grant you more than they hold. If the operator licensed the imagery to the consultant for use in the consultant's own work product, that is the ceiling, and a clause in your contract saying you own all deliverables does not raise it.

The general principle to work from, and your own counsel should confirm it for your situation, is that rights in a created work stay with the party that created it unless they are assigned in writing. Paying for work does not by itself transfer ownership of everything produced along the way. What a paying client normally receives is a licence to use the output for the purpose it was commissioned for. That is adequate for the original purpose and silent on everything that comes afterwards.

Ownership is the wrong question. The licence is the right one

Arguing about who owns the orthomosaic is a poor use of anyone's time. In practice almost nobody needs ownership. What a site owner needs is the ability to do specific things later without having to ask permission from a party they may no longer be working with. That is a licence question, and it is answerable in a sentence each:

• Can you give the imagery to a different consultant next year?
• Can you put it in front of a lender, an insurer, an auditor or a board?
• Can you attach it to a regulatory filing?
• Can you use it in a claim or a dispute, including a dispute with the consultant who commissioned it?
• Can you publish it, in marketing or in a public hearing package?
• Can you keep using it after the engagement ends, including after an unhappy ending?
• Can the operator or the consultant use imagery of your site in their own marketing, and do you get a say?

Any of those that matters to you should be written down. The ones most often discovered too late are the dispute case and the different-consultant case, because both arise exactly when goodwill has run out.

A deliverable is not the dataset

The second half of the problem is not legal at all. Even with a generous licence, a client who only holds the deliverable cannot reproduce or re-examine anything. The deliverable is a conclusion. The dataset is the evidence behind it.

The split looks like this. A deliverable is a PDF report, a flattened image placed in a drawing, a stated volume, a marked-up photo set, a screenshot in a slide. A dataset is the raw imagery as captured, the flight logs, the base station observation file and the base coordinate it was held on, the ground control coordinates with their datum and how they were established, the processed surface or point cloud in an open format, the boundary and base surface files that a volume was measured against, and the processing record.

Why the difference bites: a stated volume cannot be recomputed against a different base surface, a flattened image cannot be reprojected into your GIS, and a report conclusion cannot be checked. Worse, a capture you hold only as a deliverable cannot be used as the earlier term in a comparison. The whole value of a dated aerial record is that a later capture can be differenced against it, and that requires the surface, not a picture of the surface.

What to ask for, and when

Ask while the engagement is open and the final invoice is unpaid. This is the single highest-leverage timing decision in the whole topic. A request made then is a normal item of project closeout. The same request made eighteen months later, to a consultant you have moved on from, is a favour, and one made during a dispute is a fight.

The list to request, in rough order of how often it turns out to matter:

• The processed surface or point cloud in an open format, with its coordinate system, vertical datum and geoid model named in writing rather than implied.
• The orthomosaic as a georeferenced file, not an image pasted into a document.
• The base surface and boundary files behind any volume you were given, because without them the number is not reproducible.
• Ground control coordinates with the datum, the epoch and a note on how they were established.
• The base station observation file and the coordinate the base was held on, which is the item most often missing and the one that makes a dataset re-processable.
• Raw imagery as captured, unedited, with its original timestamps and embedded metadata intact.
• Flight logs, which carry the record of what was actually flown rather than what was planned.
• The name of the operator who flew it, which costs nothing and saves a great deal if you later need the person who was on site.

Expect pushback on two of these. Raw imagery is bulky, and some operators treat the processing recipe as proprietary. Both are negotiable. You are usually not asking for a method, you are asking for the inputs and the outputs.

The paragraph to put in the consultant's scope

Everything above is fixed once, at the scope stage, with a flow-down requirement. The shape of it, which your counsel should put into your own contract language:

• Any aerial capture the consultant commissions in connection with the engagement is licensed to you directly, on terms no narrower than those granted to the consultant.
• The licence is perpetual, covers your own operational, financial, regulatory and legal uses, and survives the end of the engagement for any reason.
• Named data items are delivered to you at the engagement's close, in stated open formats, whether or not you asked during the project.
• The coordinate system, vertical datum, geoid model and epoch are stated in writing with the delivery.
• Retention: the operator or consultant keeps the raw capture for a stated period, and provides it on request within that period.
• Imagery of your site is not published or used in third-party marketing without your written consent.
• The consultant discloses which capture was subcontracted and to whom.

Seven lines, written once, applying to every flight that consultant ever commissions on your behalf. It is the cheapest item in this article by a wide margin.

Retention is its own question

Ownership and retention get conflated and they are separate. You can hold a perfect licence to data that no longer exists. Raw aerial imagery is large, operators manage storage actively, and an internal retention period is an operational policy rather than a promise to you. If the capture is part of a monitoring series, a compliance file, or anything that might be looked at years later, the retention period belongs in writing alongside the licence. The alternative is to take delivery of the raw data yourself and accept the storage, which for a capture you expect to rely on is often the simpler answer.

If the imagery might ever be evidence

Capture that could end up in a claim, a regulatory file or a hearing carries an extra requirement: the file and its handling have to be defensible. Here the two-contracts-deep structure is a real weakness. An unedited original sitting on a server belonging to a company you have never contracted with, reached only through a consultant you may be in dispute with, is a weaker position than the same file in your own hands with a dated transfer record. If that use is foreseeable, take delivery of the unedited originals at the time of capture rather than at the end of the project, and keep the transfer record.

What to do if the flight has already happened

Most readers are not at the scope stage. They have a report, a nagging feeling, and an old invoice. A workable order of operations:

• Read the consultant's agreement first, specifically any clause on deliverables, intellectual property, subcontractors or data. It may already cover you.
• Ask the consultant what they hold and under what terms, in writing. The answer is frequently that they have never looked, which is useful in itself.
• Ask for the dataset now rather than when you need it, even with no immediate use in mind. Storage is cheap and the request gets harder with every month.
• Find out who flew it and whether the raw capture still exists. A retention clock may already be running.
• Fix it forward. Put the flow-down paragraph in the next scope, and in the renewal of the current one.

And one thing not to do: do not treat this as a reason to avoid letting consultants commission capture. A consultant who orders the flight as part of an integrated scope usually gets a better-targeted capture than an owner buying one in isolation. The problem is not the arrangement, it is leaving the data question unasked.

Where we sit on it

We fly a meaningful share of our work for consultants rather than for the end client, so this comes up constantly. Our position is that the site owner should end up holding a licence to capture of their own site, and we would rather that be explicit in the subcontract than discovered later. If you are the owner and a consultant is commissioning the flight, you are welcome to send us the data and licensing requirements directly and we will quote to them. If you are the consultant, telling us up front that the capture needs to be licensed through to your client is a one-line change at quote stage and avoids an awkward conversation at closeout.