Friday, April 26, 2019

The Toronto Real Estate Board is Back in the Copyright News



An important milestone in Canadian competition and copyright law was the resounding defeat in 2017 of the Toronto Real Estate Board (TREB) in its attempt to use copyright law to control the use of some key data concerning the Toronto real estate market. See Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236. Leave to appeal to the Supreme Court of Canada was dismissed: Toronto Real Estate Board v. Commissioner of Competition, 2014 CanLII 40510 (SCC).
Justice Nadon of the Federal Court of Appeal summarized the issues at the outset of the FCA decision
[2] TREB maintains a database of information on current and previously available property listings in the GTA. TREB makes some of this information available to its members via an electronic data feed, which its members can then use to populate their websites. However, some data available in the database is not distributed via the data feed, and can only be viewed and distributed through more traditional channels. The Commissioner of Competition says this disadvantages innovative brokers who would prefer to establish virtual offices, resulting in a substantial prevention or lessening of competition in violation of subsection 79(1) of the Competition Act, R.S.C. 1985, c. C-34 (Competition Act). TREB says that the restrictions do not have the effect of substantially preventing or lessening competition. Furthermore, TREB claims the restrictions are due to privacy concerns and that its brokers’ clients have not consented to such disclosure of their information. TREB also claims a copyright interest in the database it has compiled, and that under subsection 79(5) of the Competition Act, the assertion of an intellectual property right cannot be an anti-competitive act.

[3] For the reasons that follow, we would dismiss the appeal.

It seems, however, that TREB hasn’t given up trying to control the use of information from its database. It has recently obtained a consent order against a business called MongoHouse.com, presumably the entity behind this website.  

TREB has issued a press release dated April 17, 2019 that states that “The Court has affirmed TREB’s right to protect its proprietary and copyright information and stop any unlawful attempts to sell or monetize TREB MLS® data.” This has been picked up to some extent by main stream media, e.g. here.

Consent orders are not binding precedent and are often a practical conclusion to an unsuccessful encounter by a David with a Goliath. The unreported consent order reads as follows in this instance :
1. It is hereby ordered and declared that as the owner of the TREB MULTIPLE
LISTING SERVICE (“TREB MLS®”) and the TREB MLS® Database, TREB is the
owner of the copyrights associated therewith, pursuant to the Copyright Act, RSC
1985, c C-42 (the “Act”). It is acknowledged in relation to this declaration that the
MLS® logo is a registered trademark of the Canadian Real Estate Association
(“CREA”) and is used under license by TREB in association with the TREB MLS®.
2. It is hereby ordered and declared that the unauthorized copying, data scraping,
downloading, display, distribution, access to make available for distribution,
streaming for public display any TREB MLS® data is a breach of TREB’s
proprietary rights and copyrights associated with the TREB MLS®.
3. It is hereby ordered and declared that any access to the TREB MLS® other than as
authorized by TREB using any means to avoid, bypass, deactivate, impair, or to
circumvent in any manner a technological protection measure (“TPMs”) is a breach
of Section 41 of the Act and is an infringement of TREB’s rights.
Page: 3
4. A permanent injunction is hereby granted against the Mongohouse Defendants
restraining each of them, their officers, directors, employees, agents, assigns,
servants, or any person acting under their instructions, from:
a) accessing, copying, data scraping, downloading, displaying, distributing,
accessing to make available for distribution, streaming for public display any
TREB MLS® data or information, unless expressly authorized in writing by
TREB;
b) using any method to avoid, bypass, remove, deactivate, impair or circumvent any
TPMs put in place to protect or limit access to the TREB MLS® system and data;
c) from operating, conducting, or having any involvement in or providing or offering
means to access the TREB MLS® system, or assisting in the collection or display
of the TREB MLS® data, unless expressly authorized in writing by TREB;
d) from maintaining, operating, implementing, marketing, or having any
involvement with any business or enterprise used in any manner or form for the
purpose of providing or offering a means to access the TREB MLS® system via
any means or method, including any internet based technology, without the
express written permission of TREB.
5. The action is otherwise hereby dismissed on a without costs basis and the
Counterclaim is hereby dismissed on a without costs basis.
(highlight added)

It is far from clear how this order squares with the very clear reasoning of the FCA in the reported decision cited above that concludes, inter alia:

[194] The Tribunal considered a number of criteria relevant to the determination of originality (paragraphs 737 - 738 and 740 - 745). Those included the process of data entry and its “almost instantaneous” appearance in the database. It found that “TREB’s specific compilation of data from real estate listings amounts to a mechanical exercise” (TR at para. 740). We find, on these facts, that the originality threshold was not met. (emphasis and underline added)

Even if it could be argued the FCA’s decision with respect to copyright was technically obiter dicta in light of its findings under the Competition Act, the FCA’s reasons regarding copyright are very clear and detailed (see paras. 176-196) and were meant to have an effect.

It will be interesting to see whether the Competition Bureau follows up on what appears to be a result that may be inconsistent with the Commissioner’s clear victory in the Federal Court of Appeal.

HPK

PS: HT to Alan Macek and Graham Honsa.


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