Copyright 2010, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Intellectual Property/Information Technology Social Media Series , December 2010
User-generated content (UGC) has become one of the key components of the Web 2.0 environment. UGC raises a number of issues and risks relating to copyright and screen scraping.
UGC includes content contributed by users on wikis, blogs, discussion forums and social networking websites (see our September 2010 Blakes Bulletin on Intellectual Property). UGC includes text, such as product reviews and blog comments, photographs, videos and music, as well as combinations, or "mash-ups", of any one or more of such media. The widespread and increasing popularity of Web 2.0 has led many organizations to promote or permit the posting of UGC on their own websites and their pages on social networking websites.
The proliferation of frequently accessible and easily navigated websites that simplify the posting and sharing of content from a wide range of sources has lead to heightened concerns for copyright owners and may expose website operators to risks of copyright infringement for the posting of UGC on their websites.
Not all content is subject to copyright. The minimum standard that must be met for a work to qualify for copyright protection is "originality". Originality has different standards in different jurisdictions. By way of example, in Canada, for a work to be considered original and therefore attract copyright, it must be the product of the author's exercise of skill and judgment. Creativity is not a condition of originality.
Assuming that copyright subsists in a work posted by a user, ownership of copyright in the work may be owned:
- entirely by the user based on authorship and/or the acquisition of title by the user;
- by both the user and one or more other parties as a result of authorship and/or acquisition by one or both;
- by the user as the result of the adaptation of content owned by a third party into a new original derivative work; or
- by one or more third parties and not at all by the user.
While each category raises legal concerns, the last two pose the most risks for copyright infringement in the Web 2.0 context given that a person other than the user may have rights in the posted work or a work from which the posted work is derived.
If neither the user nor the website operator owns, or has an applicable licence to, the copyright in UGC, the posting or transmission of the content may constitute infringement of copyright resulting from the violation of one or more component rights. Depending upon the jurisdiction, these may include the rights of reproduction, communication to the public, making available, public performance, and distribution. Posting UGC may also infringe neighbouring rights related to performers' performances, sound recordings and broadcasts.
Canadian Copyright Reform
United States and European law provide website operators with immunity from, or safe harbours for, copyright infringement for UGC in certain circumstances. Canadian copyright law does not currently provide the same protection (see Risks of User- Generated Content to Website Operators, on page 6 of our December 2010.
The proposed 2010 amendments to the Copyright Act in Bill C-32 (see our June 2010 Blakes Bulletin on Intellectual Property). would immunize Internet users and website operators for UGC in certain circumstances.
The Bill proposes that it would not be copyright infringement to use the work, combine it in a new work, or authorize dissemination by an intermediary, such as a website operator, provided that:
- the name of the author is referenced, if reasonable to do so;
- the person who deals with the work has reasonable grounds to believe that the existing work or a copy of it does not infringe copyright;
- such activity is done solely for non-commercial purposes; and
- the activity does not have a substantial adverse effect, financial or otherwise, on the exploitation of the existing work or a market for it.
Examples of permissible activities provided on a Government of Canada website about the Bill include the making of a home video of a friend dancing to a popular song or creating a "mash-up" of video clips and posting them online.
It would also not be infringement merely to provide digital memory in which another person stores a work for the purpose of allowing its telecommunication through the Internet. However, immunity would not be available if the person providing the digital memory knows of a court decision holding that the person who stored the work infringes copyright by making the copy or using the work.
"Web scraping" or "screen scraping" is the extraction of data from another person's website by way of a computer program and the aggregation of such data in a commercially valuable form. Some web-scraping software is very sophisticated and essentially simulates clicks to drill down through a web page and collect data from a website in a very short period.
Typically, a screen scraper accesses the website of the target, electronically reads and copies information from the displayed web page, and then aggregates and redisplays the information on its own website. The aggregator may provide price comparisons, be a competitor of the target, or be a reseller of the target's products or services. A screen scraper attempts to leverage the compiled data to profit from the increased traffic.
Scraping is popular among price comparison and other intermediary websites, such as in the travel or consumer goods industries, whose operators find it a quick and inexpensive method of collecting large amounts of data that are subject to constant, and often daily, fluctuations.
However, scraping may not be permissible in all situations. Website operators have sued, and in some cases prevailed against, third parties that use scraping software to extract pricing or product information, claiming that such actions constitute copyright infringement, trespass to the website operator's computer systems, violation of computer misuse statutes, and breach of the operator's terms and conditions.
For example, a discount airline, Ryanair, sued German defendants in an Irish court in response to what it alleged was unauthorized scraping and "mis-selling" of tickets from Ryanair's website. The defendants argued that the Irish court did not have jurisdiction.
Ryanair argued that, by reproducing content from its website without permission, the defendants violated the terms and conditions which prohibit third parties from using its website for commercial purposes. Ryanair also argued that the defendants' conduct breached its intellectual property rights, including its copyright and database rights.
The court held that a contract existed between Ryanair and the defendants because the latter agreed to the terms and conditions which were prominent on the website. The relevant terms and conditions stated that the Irish courts alone had exclusive jurisdiction to deal with any dispute between the parties. The consideration provided by Ryanair for the contract was making the information available on its website.
In contrast, a claim under the United States Computer Fraud and Abuse Act based on the scraping of data failed because the court said that the scraped data was not protected by restrictive password access, restrictive terms and conditions of service or in any other manner that would make access to the data unauthorized.
These decisions highlight the importance for website operators to have appropriate terms and conditions in place.
Terms and Conditions
Scraping and UGC copyright issues raise the question as to how a website operator can protect the data available on its website and protect itself from copyright claims from third parties. No single solution will eliminate all risks, however, there are some strategies available to a website operator. An operator should consider the following in adopting terms and conditions:
- include a notice that copyright and other intellectual property rights, such as trade-marks and, in some jurisdictions, database rights, are proprietary to the website operator;
- include a provision requiring that users own, or at least have an appropriate licence in, the copyright in the content they post;
- specify the nature of the licence in posted content that is granted to the operator by the user and providing that such licence covers all uses that the operator foresees that it and other users will make of the content;
- alternatively, depending on the circumstances, provide that copyright in the UGC vests in the operator. However, this may not be sufficient to effect an assignment of copyright in some jurisdictions. This may also expose the website operator to liabilities and reduce or eliminate the availability of certain defences;
- stipulate that only non-commercial use of information posted on the website is permitted and that users of the website are deemed to be bound by a licence agreement prior to making use of website information;
- prohibit or limit screen scraping or any other unlicensed activities by expressly stating that the use of a robot, spider, scraper or any other fully automated means of accessing the website for any purpose, including screen scraping, is prohibited;
- ensure that the terms and conditions are clearly worded, clearly visible and brought to the attention of users before they access the UGC or commit to buying goods or services; and
- review the terms and conditions regularly to ensure that they are current and relevant to the content posted on the website.
A website operator should carefully consider terms and conditions on its website to reduce the risks of copyright infringement for UGC and the right of others to scrape and reuse valuable data.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.