Copyright, scraping, and you! Oh my!

I receive emails from members quite frequently alleging that listing content has been scraped from CREA investigates these complaints and contacts anyone we confirm is, in fact, scraping We send cease and desist letters that inform scrapers their activity is a breach of the terms of use on our website and demand that their activity cease.

That’s fine and dandy when listing content is scraped from, but often we investigate these complaints and find that the listings have been scraped from some other website.  For example, what if the listings were scraped from the listing broker’s website?  Then what?

Typically listing brokers own the copyright over their listings and therefore brokers could sue scrapers for copyright infringement.  Unfortunately, such a claim for copyright infringement won’t always be successful.

You see copyright law only protects ‘works’, like listings, from copying if there is a “substantial taking”, which is assessed qualitatively and quantitatively.  What does this mean?  It means a claim for copyright infringement won’t be successful unless a significant part of a listing is copied, like the listing pictures or description.  There was a recent case between Century 21 and Zoocasa where the court looked at exactly this issue and found that copying facts from a listing, like the price, address, and number of rooms, was not enough to amount to copyright infringement.

So if the listing broker can’t sue for copyright infringement, then what?  Well, they should ensure they have terms of use on their website that explicitly prohibit copying of listing content.  This could enable them to sue scrapers for breach of contract.  Of course, that’s assuming that the terms of use are enforceable.  So what makes terms of use enforceable?

There have been a couple Canadian cases where browse-wrap terms of use on websites were held to be enforceable.  This is where the terms of use are somewhere on the website, usually requiring users to click on a link to “legal” or “terms of use”.  The decisions in these cases emphasized that such agreements are only enforceable if the user of the website has notice of the terms (i.e., they know they exist) and if the terms clearly state that proceeding further is acceptance of the agreement.

It can be difficult to establish that users have notice of terms of use with browse-wrap agreements, which is why the better approach is to put terms of use in a click-wrap agreement that requires users to actively accept the terms before accessing listing content.  This helps website owners prove that users are aware of terms of use if they are subsequently breached.

It’s for this reason that I always suggest terms of use be included in a click-wrap agreement right up front.  I know, I know, lawyers are notorious for making things overly-complicated and requiring people to do things that seem unnecessary, but as you can see there’s a good reason here.  Keep this in mind the next time you revise your website.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Allison McLure, former Legal Counsel, provided advice to CREA, boards, and associations on intellectual property law, DDF®, and Canada’s anti-spam legislation, as well as protected CREA’s trademarks and helped members comply with federal legislation and CREA’s trademark rules.

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