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Mi Casa es Zoocasa? Copyright in Real Estate Websites

In Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196 (CanLII) the BC Supreme Court had the opportunity to consider the validity of “browse wrap” contracts and the availability of the fair dealing exceptions to copyright infringement in the context of a website (operated by Zoocasa) which reproduced and indexed real estate listing information from another website (operated by Century 21).  The Court decided that Zoocasa had breached Century 21’s website Terms of Use and infringed copyright, but that Century 21 did not own that copyright.

Century 21 ran, and still runs, a website that contains real estate listings, property descriptions and photographs. Zoocasa runs a website that gives a consumer perspective view of buying property. This means that Zoocasa offers information about the neighbourhoods where a property is located. This can be information like where is the closest shopping mall, how far is the workplace, satellite views and street level views. Zoocasa also has a computer program, called a robot, which searches through other websites to find real estate information which it then republishes on its own site with links to the original location. Zoocasa’s program was crawling, or taking information from, Century 21’s website. Century 21’s website initially did not have any Terms of Use explicitly preventing the use of robots, but these were added later and Zoocasa’s program continued to take the information.

One of the main questions the Court had to answer was: Did Century 21’s Terms of Use create a contract between Century 21 and Zoocasa?

Century 21 used a very common strategy of placing their Terms of Use in a link at the bottom of their home page. If you navigated to their website you wouldn’t have to read the Terms of Use if you didn’t want to. These are called “browse wrap” agreements, and no active agreement (by clicking I agree for example) is required. There aren’t many Canadian cases on whether browse wrap agreements create a valid contract or not. So, the Court looked at what has been done in the US and decided that, as long as a user has a clear opportunity to read the agreement, browse wrap Terms of Use can create enforceable contracts. The website owner has offered the use of the website in return for acceptance of the Terms of Use, and the user accepts those Terms of Use by navigating past the home page of the website.

The Court also warned that there could be problems raised in the future with the contents of some Terms of Use agreements that make them invalid. But this decision certainly reinforces the usefulness of having well-written Terms of Use as another tool to protect your information and your website.

The other main question the Court had to answer was: Was Zoocasa’s copying of copyrighted works from Century 21’s website fair dealing?

Fair dealing is an exception to copyright infringement under the Copyright Act. If a copyright infringer can show that they fall under this exception then they do not legally infringe the copyright. For a dealing to be fair it must be for the purpose of research, private study, criticism, review or news reporting and it must pass a complex test to see if the dealing is “fair”.

The Court performed this test and determined, in the end, that Zoocasa’s use was not fair and copyright was infringed by the unauthorized copying of material from Century 21’s website. This is a fairly unsurprising result because Zoocasa was taking copyrighted material to promote its own website and to try to make money. What was different and interesting here was that Century 21 argued that the usual complicated test should not matter because Zoocasa didn’t comply with something called the Robot Exclusion Standard. The Robot Exclusion Standard is a search engine industry standard which provides an easy way for websites to stop search engines that follow the standard from crawling their content with robots. Zoocasa did not follow this standard and so, Century 21 could not easily stop Zoocasa from using its robot. Century 21 argued that because Zoocasa did not follow the industry standard, its dealing could not have been fair.

However, the Court decided that the Robot Exclusion Standard addresses only how the copyrighted material was obtained, not whether its use was fair. How the material came into Zoocasa’s possession is irrelevant to whether they used that materially fairly after they acquired it. So, it didn’t matter at all that Zoocasa was not following an industry standard when they copied material from Century 21’s website.

The last important point from this case is to make sure that you are fully aware of who owns the copyright in materials on your website. Much of the copyrighted material on Century 21’s website was photographs and descriptions that were written by and owned by real estate agents, not by Century 21. While Century 21 was organizing the lawsuit against Zoocasa they failed, for whatever reason, to get sufficient rights assigned from the real estate agents to Century 21. As a result, the copyright claim by Century 21 was dismissed. However, all was not lost as the real estate agents who did have the appropriate rights were also plaintiffs in the lawsuit, and they were awarded $32,000 in damages.

In summary, Terms of Use, when properly used, can create enforceable contracts, and as such can be important tools for providing further protection for materials on your website.  It is also important to always keep in mind who owns the copyright in the material on your website.


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