B.C. Case Adds to the Rules of Robotics

The B.C. Supreme Court recently decided a case that will be of interest to various Internet-based businesses.  In particular, the case will be relevant for companies that provide Internet search capabilities or that harvest Internet data.  In Century 21 v. 2167961 Ont. Inc. (d/b/a Zoocasa Inc.),  Justice Punnett of the B.C. Supreme Court considered a number of novel issues under Canadian law.  In particular, the Court considered (i) the enforceability of website terms of use; (ii) infringement of copyright through website scraping; (iii) the scope of the “fair dealing” exception; and (iv) the availability of the tort of trespass to chattels in an electronic setting. 

Unsurprisingly, the Court concluded that standard website terms of use for which reasonable notice is provided will be enforceable.  The Court also concluded that there are no special public policy exceptions for the copying of online content.  Beyond these expected results, the case also contained an interesting analysis of fair dealing in the context of Internet data indexing and the relevance of the robot exclusion protocol. 

The robot exclusion protocol is a relatively well-known way for website operators to control whether their website is searched, and, if so, by whom.  One part of the robot exclusion standard specifies how robots and spiders can identify themselves to a website.  (For example, the Google spider/robot is called googlebot.)  Another part of the robot exclusion standard specifies how websites can tell robots and spiders not to visit a website (or which parts of a website not to visit).

The Zoocasa robot was somewhat unusual in that it not identify itself and did not observe the robot exclusion protocol.  Century 21 argued that this behaviour should militate against a finding of fair dealing.  However, the Court found that Zoocasa’s failure to follow the robot exclusion protocol was not relevant to a fair dealing analysis.  The Court observed that fair dealing only arises when consent has not been given for the use of a copyrighted work and the robot exclusion standard is simply another way of denying consent.  The purpose of a fair dealing analysis is to assess the nature of a dealing with a copyrighted work and not whether consent was given for that dealing.  Since Zoocasa’s failure to follow the robot exclusion standard related only to the acquisition of a copyrighted work and not its subsequence uses, the Court did not consider Zoocasa’s failure to comply with the robot exclusion standard relevant to fair dealing.

In conducting its fair dealing analysis the Court also made another observation that may be very significant for Internet search engines. Specifically, the Court observed that:

[Zoocasa’s use was] not a situation of a one-time copy being taken.  It is conduct consisting of repeated actions by the defendants.  In my view the amount of dealing exceeds what is fair.

Since Internet search engines need to repeatedly access a website to make sure the search engine’s index reflects the then-current content available on that website, this factor (unless modified) will always work against search engine providers.  Instead of focusing on the taking of one-time copies versus repeated copies, this factor might be made more balanced by examining whether the number of copies taken is reasonable having regard to the nature of the dealing.  In some instances it may be reasonable to limit the use of copyrighted materials to a few copies or perhaps even a single copy, but in the case of an Internet search engine, a restriction to a single copy basically means that material cannot be indexed at all.

Ultimately, the Court concluded that Zoocasa’s use of various pictures and property descriptions from the Century 21 website was not a fair dealing and as a result Zoocasa infringed copyright in those works.  The Century 21 decision helps to clarify some legal uncertainties around a number of Internet business models.  The decision confirms that a standard set of terms of use that are made reasonably available will be enforceable.  The case also confirms that there is no special public policy exemption from copyright infringement for Internet search engines.  The judgment also provides guidance on some factors to be considered in a fair dealing analysis in an Internet setting.  However, since fair dealing is a fact dependent assessment, the conclusion that Zoocasa’s uses of copyrighted material were not a fair dealing does not necessarily mean that this will also be the case for other Internet search engines.  Finally, the Century 21 case provides more clarity on the legal benefits of following the robot exclusion protocol.

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