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 TorontoReal 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Consent orders are not binding precedent and are often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
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