2005-04-05 CIPPIC Paul Schreiber

8/7/2019 2005-04-05 CIPPIC Paul Schreiber

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5 April 2005

VIA EMAIL

Paul Schreiber

[email protected]

Dear Mr. Schreiber,

Re: Data taken from Parliament and Postalcodedownload.com

You have asked our opinion on whether using a computerprogram to extract data from thewebsite of postal oded wn oad. om andParliament'swebsiteviolatesCanadianaw.

In our view, your inquiry raisesquestionsn five distinct areasoflaw:

1.2.3.4.5

copyright;contract;trespasso chattels;private andpublic nuisance;andthe tort of misappropriation.

Summary of Findings

We conclude hat there is probably no copyright infringement.breach of contract,chattels.private nuisance, ublic nuisance, r an actionableappropriation.

Using a computerprogramyou wrote for thatcodes rom postalcodedownload.comith 3000 queries.You then mapped he postal codes o Members of Parliamentusing the "find your M.P.Hfunction provided on Parliament'swebsite with 1526queries.

The otal time you occupiedboth websiteswas approximately wo to threehours.You are unaware of your computerprogram harming either the postalcodedownload.comwebsite or the Parliamentarywebsite.

Using the data you extracted rom the website, you wish to develop a "fmd your M.P'"service,similar to that offered at the Parliamentarywebsite,but available o the public undera CreativeCommons icense

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Canadian Internet Policy and Public Interest ClinicClinique d'interet public et de politi que d'internet du Canada

David Fewer, Legal Counsel(613) 562.5800 (2558)

[email protected]

trespass o

postallist of Canadian

University of OttawaFaculty of Law(Ontario) K1N 6N5 Canada

Universite d'Ottawa .

Faculte de droit.

57 Louis-Pasteur, Ottawa(613)562-5800 (2553) .

www.cippic.ca .(613) 562-5417 (TeleclFax)

[email protected]



The advice contained n this letter is basedon these facts. If any relevant facts

please ontactus becausehose acts may changeour opinion.

ed copyright in any works of either postalcodedownload.com

contract between yourself and either

Have you committed a "trespass to chattels" owned by either postalcodedownload.com

or Parliament?(4) Do your actionsamount o either a private or public nuisance? nd(5) Are your actionsotherwisevulnerable o challenge ndera misappropriation laim?

We shall considereach n turn. We will then briefly discuss oreign database rotection awsbeforeconcludingwith our adviceon your options.

(1) Copyright Infringeme

These facts raise the possibility that you have infringed copyright in thepostalcodedownload.comebsite or Parliament'swebsite.To detenninecopyright nfringement,a court irst considerswhether he content akenwas subject o copyright.

Subsection3(1) of the Copyright Act protects "every original literary, dramatic, musical andartistic workH. A "literary work" is defined in s. 2 of the Copyright Act to include "tables,

computerprograms,and compilations of literary worksH.Paragraph (b) of the Copyright Actdefines a "compilationHas including "a work resulting from the selection or arrangement f

data".

must consider wo issues n turn:e

1. Did either of the websitescontain a compilation?2. If so. was he compilation"original" and so attractcopyrightprotection?

The content of both the postalcodedownload.com ebsite and Parliamenfs website wouldconstitutea ~~compi1ationunder he Act, and hus a literary work, since here s an arrangement

of selecteddata. Postalcodedownload.comists postal codes inked to cities, province names,areacodes,dwellings, etc. This would be an arrangement f data. Parliament'swebsite has afunction where he user ypes n his/herpostal codeand the Member of Parliamentwill be foundfor this user.This s anarrangementf selectedata.

The question remains whether these compilations are "original", and so subject oThe SupremeCourt of Canadan CCH CanadianLtd. v. Law Societyof Upper Canada,S.CR. 339 defined "original" as follows:

For a work to be lIoriginal" within the meaningof the Copyright Act, it

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are mISSIng,

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copyright.[2004] 1

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more than a mere copy of anotherwork. At the same ime~ t neednot be creative~in the sense of being novel or unique. What is required to attract copyrightprotection n the expression f an dea s an exerciseof skill and udgment.By skill~I mean the use of one's knowledge, developed aptitude or practised ability inproducing he work. By judgment, mean he use of one'scapacity or discernmentor ability to form an opinion or evaluationby comparingdifferent possibleoptions

in producing he work. This exerciseof skill and udgment will necessarilynvolveintellectual effort. The exerciseof skill and udgment required o produce he workmust not be so trivial that it could be characterized s a purely mechanicalexercise.For example,any skill and udgment hat might be involved n simply changing hefont of a work to produce "another" work would be too trivial to merit copyrightprotectionas an "original" work.

Applying this standardof originality to postalcodedownload.com,ne might strongly argue hatthe compilation s not original. On its website, one can find further nfonnation on postal codesby two approaches:1) selecting he necessary rovince,or (2) selecting he first character f thepostal code. A postal code has two segments: Forward SortationAreat! (FSA), the first three

characters f the postal code, and "Local Delivery Unit" (LDU), the last three characters f thepostal code. If the user adopts he first approachand selectsa province, a list and hyperlink ofFSAs in that province will appear.Accessinga particular FSA revealsall postal codessharingthat FSA. Accessingan individual postal code eveals he code's associated ity, province,areacode, ime zone, ongitude, and latitude. If the user adopts he secondapproach,all the FSAswith the same irst characterwill appearhyperlinked.Accessinga particular FSA revealsall thepostal codessharing hat FSA. Once again,accessing n individual postal code eveals he city,province,areacode, ime zone, ongitude,and atitude associated ith that postal code.

Canadian ourts, such as n TeTe-Direct Publications) Inc. v. American Business nformation,Inc., [1998] 2 F.C. 22 (C.A.) have found that names, towns, and telephone numbers of

subscribers n telephone directories uncopyrightable fact~ since they were not selected,coordinated, r arrangedn an "original" way. Applying this standard, ostalcodedownload.comcannotbe said o have arranged ts postal code databasen an original manner. An alphabeticallisting of postal codesdisplays nsufficient skill and udgement n selectionand arrangementoattractcopyright protection.

The originality analysis of the selection and arrangement f data on Parliament's website issimilar to the analysisof postalcodedownload.com's ebsite content.Compiling and arrangingthe name,address, mail, and phonenumberof the M.P. basedon the postal codedoesnot entailparticular skill or judgement. This parallels he listing of namesand addresses f people n thephone book. The arrangement f Parliament'sdatabasewas a mechanicalexercise.Therefore,

Parliament'swebsite'scompilation s not original.

Based upon the facts and analysis> n our view, neither compilation is sufficiently original to

attract copyright.

However,originality is a subjective est. Although not a likely outcome,a court could well cometo a different conclusion. In that case,we must considerwhether a court would also concludethat your actions nfringe any copyright ound n thosedatabases.

The Copyright Act grants he owner of copyright the exclusive ight to do a nwnber of acts n

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relation to a copyrightedwork> ncluding copying, renting out, publishing, and distributing thework or any substantialpart thereof. A court may well conclude hat in creating your owndatabase herepeoplecan find their M.P s, you have eproduced substantial art of the worksat issue. From postalcodedownload.com,ou extracted he postal codes,which constitutesasubstantialpart of their database. rom Parliament'swebsite,you found the list of M.P.s usingthosepostal codes.Again, this list constitutesa substantial art of that database.You may also

have ssues n respectof "renting out" or "distributing" works protectedby copyright. In thecircumstances,we suspect hat a court would likely find your actions to have inftinged anycopyright hat subsistsn thesedatabases.

Should a court fmd your actions o have infringed copyright, you might avail yourself of the

defenses f inferred consentor fair dealing.

The defenseof inferred consent ests upon the acts of the copyright owner and the reasonableinference that the copyright owner consented o your dealing with the work in question.Accordingly, inferred consent s a factual inquiry into the conduct of the copyright owner. Itcould be argued hat postalcodedownload.comonsentedo you copying their data hrough he

omission of any website terms and conditions regarding how users should use their websiteservices. Essentially, you would argue that the website was free to the world, andpostalcodedownload.comannotnow argue hat terms governed hat website. A court may findthis defenceweak because or inferred consent o apply, he court may require more han simply

omitting website erms.

The Parliamentarywebsite presents n evengreater hallenge o making out a defense f inferred

consent.The Parliamentarywebsitestates he following:

The material on this site is covered by the provisions of the CoDvrif!htAct andrelated regulationsand internationalagreements. uch provisions serve o identify

the infonnation source and, in specific instances, o prohibit reproduction ofmaterialswithout written pennission.

It would be difficult to infer consent oof sucha prohibition.

The defense f fair dealingmight also provide you with assistance.Sections 9 of the CopyrightAct provide that "fair dealing for the purpose of researchor private study does not infringecopyright." The SupremeCourt of Canadahas stated hat research must be given a large andliberal intetpretation n order to ensure hat users' ights are not unduly constrained." The Courtuses six factors o help detenninewhether any given dealing s "fair" for the purposesof this

defense:

1. The purposeof the dealing;2. The character f the dealing;3. The amountof the dealing;4. Alternatives o the dealing;5. The natureof the work; and6. The effect of the dealingof the work.

Arguably. gathering the data fTOmboth websites and correlating postal codes with M.P.s

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action n the facenfringingould otherwisebe anhat



constitutesprivate study or research. However, it is not likely that subsequently ffering thisdata o the public under a Creative Commons icensewould qualify as either private study orresearch. t is possible hat in creatinga tool for others o use or their private study or research,you might bring yourself within the ambit of the defense; owever, n the absence f case awsupportingsuch an interpretation, he safer view is that the.se inds of downstream nnovationsfall outsideof the scopeof the fair dealing defense. Moreover, he fact that the content hat you

took for free is available or purchasemight suggest hat your dealingwas not "fair". This is allthe more likely given that your downstream nnovation in fact would compete with theParliamentarywebsite service. On balance, t is unlikely that a court would find your dealing

fair under he Act.

To summarize ur view of the implications of your actionsundercopyright aw, we do not thinkit likely that a court would find that the postal codesandcorrelatedM.P. namesyou copied romthe websites n questionpossess ufficient originality to enjoy protection under the CopyrightAct. Rather,we think it likelier that a court would regard his dataas unprotectableacts. Whilewe regard his as he likeliest outcome, here s at least a chance hat somecourtswould disagree.In the case hat either the postal codesor the M.P.s list enjoys copyright protection,we regard

your actionsas ikely to be found to infringe copyright. We also regard t as unlikely that youwould be able o makeout an effectivedefense ndereither nferred consent,or fair dealing.

(2) Breach of Contract

These acts raise the possibility that you may have breacheda contractwith one or both of thewebsite proprietors. Neither postalcodedownload.comor the Parliamentarywebsite requiredyou to enter nto an obvious,visible contract. Nonetheless,he mannerof your interactionwiththe websites and their terms and conditions may be sufficient to support the existenceof acontractbetween he parties.This issuesuggestshat the proprietorsof the websitesoffer the useof their websitesunder certain erms andconditions,and n appropriating he data or use n your

own application,you haveviolated hose erms and conditions.

To determinewhether this issue s a concern,we will first considerwhether one could fmd acontract between yourself and either website>and second, f we find one,whethera breachoccurred.We will examineeach ssue n turn.

A contract must contain three elements:an offer, an acceptance, nd consideration.An offeroccurswhen the offerer presents erms o anotherparty. In this case, he websiteswould be theofferers. Acceptanceoccurs when another party accepts he offerer's terms. Considerationoccurswhen he other party benefits he offerer by way of an act or forbearance.Considerationis the elementof exchange hat distinguishesa contract from a gift: somethingmust go both

ways.

Applying this framework to these facts, we query whether either website meets the "offer"requirement. In the case of postalcodedownload.com,he website contains no terms and

conditions~ o terms of use, no user egistrationprocedureand no "click-wrap" type agreement.However~t does nclude pop-up advertisement.This suggestshat the website operates nder abusinessmodel which attracts he public to the website (by offering a free service) n order toexpose isitors to paid advertising. One nterpretationsuggestshat the contract nvolves a trade:consumereyeballs n exchange or postal codes. The website proprietor could argue hat you

have breached hat bargain by extracting he data. In our view, this is not a strong argument.

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we will consider



Nothing on the postalcodedownload.com ebsite prohibited your action, and nothing (beyondthe mechanics f a visit to the website tself) supports he notion of any exchange. t is difficultto identify an offer, an acceptance, r any consideration. In our view, the better view is thatpostalcodedownload.comffers a free service. While you have perhapsused hat service n amanner hat was not intendedby the website owner, t is difficult to say hat you havebreached

any contract n your use.

Similarly, it is doubtful that the Parliamentarywebsite owner could establish he existence f acontract,or its breach. n your actions. The Parliamentarywebsite does nclude terms of use.Nothing in those erms suggestshe formation of a contractbetweenParliamentand any thirdparty user of its M.P. look-up service. Nothing in those erms explicitly prohibits the kinds ofactivities you engagedn to extract your data. Parliament's ntent in offering the M.P. look-upservice s to offer the public a servicewithout any expectationof an exchange. In our view, itwould be difficult to suggest hat a contract existsbetweenParliamentand usersof its website

M.P. look-up service.

Alternatively> f a court did find a contractbetweenusersof either website and the website's

owner, he question emainswhether you could be said to have breached hat contract n yourdata extraction or publication of your own M.P. look-up service. As stated,nothing in eitherwebsite explicitly prohibits the data extraction you undertook,or the use of that data in anydownstream pplicationssuchas an M.P. look-up service. Sucha term would have o be mpliedinto the bargain. In our view, it would be very difficult to do so. Public policy considerationsfavour competition and innovation, and frown upon tethering downstreamuses of data absentintellectual property considerationsor explicit prohibition of downstreamuse. At best, thewebsite owners could argue hat your use of their websitesshould not damageor interfere withtheir websites. If your use of their websites nterfered significantly with their functionality, orpreventedother people from using those services or extendedperiods of time, perhaps hewebsite ownercould claim that you havebreached ucha term. However,sucha claim would be

directedat your activity, not your possession nd use of the data. If such a claim were going tobe made, t would havebeenmade already. In summary,we do not regarda claim for breachofcontract,madeby eitherwebsite owner, o havea significantchanceof success.

(3) Chattelsrespass o

These acts raise he possibility of a claim for trespasso chattels. Chattels" aremoveable temsof property that are neither land nor permanently attached o land or a building. Examplesincludevehicles, urniture, and computersystems.To makeout a claim for trespasso chattels,aclaimant must establish hat the defendanthas committed "an act of direct interferencewith achattel in the possessionof another person without lawful justification" (Klar and Linden,

Remediesn Tort, at p. 4).

It could be argued hat your actionsconstituteda trespasso chattels.The chattel s the computersystem hat contains he database or both websites. Although there have been no reportedCanadiancasessimilar to the present facts, a few American cases n similar circwnstancesillustratewhat could constitutea "direct interferencewith a chattel" underCanadianaw.

In eBay v. Bidder's Edge, 100 F.Supp.2d 1058, he defendantused a software obot to gather

information on an ongoingbasis rom eBay's website o support ts own businessmodel. eBayfiled suit to put an end to the recursive searching. The court found a sufficient likelihood of

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prevailing on the trespass laim to grant a preliminary injunction. The court did not view the"public" natureof eBay>swebsite as ustifying the intrusion. While eBay nvited members fthepublic to use ts website>hat invitation did not extend o the use of recursive searching ools.The damage o eBay arose rom the loss of availablebandwidth and servercapacity.Althoughthe intrusion may be negligible, if pennitted, it could encourage imilar recursive searchingintrusionsby others,and rreparablyharming eBay in the fonn of reducedsystemperfonnance,

systemunavailability,or data oss.

In a similar case,Register.comnc. v. Verio, nc., 336 F.3d 393, he Court of Appeal affinned apreliminary injunction founded on a trespass o chattels. In that case, he defendantusedsoftwareprogramsperfonning automatedsuccessive ueries o obtain daily updates ITom heplaintiffs website and WHOIS database. t the triallevel, the court found that Verio's useoftherobotsconsumed significantportion of the capacityofRegister.com'scomputersystems.WhileVerlo's robots alonewould not incapacitateRegister.com's ystems, he court found that fVerlowere pennitted to continue to accessRegister.com'scomputers hrough such robots, it was"highly probable" hat other Internet serviceproviders would devise similar programs o accessRegister.com'sdata, and that the system would be overtaxed and would crash. The court

concluded hat this harm was sufficient to support he granting of the injunction. The Court ofAppeal affinned.

A third case with similar facts declined to grant an injunction. In TicketmasterCorp. v.Tickets. om, 2000 U.S. Dist. Lexis 12987, he defendantused computer echnology o gatherfactual nformation about events&om the Ticketmaster ite and hen would use hat informationfor its website.The court considered nd agreedwith eBay's decision~ ut on the facts before t

could find no "physical interference" n the form of physical harm to Ticketmaster'scomputerserversor obstruction of its basic function. The Court thus rejected Ticketmaster'sclaim of

trespass.

The present acts may be distinguished rom the eBay and Register.com ases. As with theTicketmaster ase, his casedisclosesno demonstrableecurring oss of availablebandwidthorserver capacity to either the postalcodedownload.com ebsite or the Parliamentarywebsite.Furthermore,you accessedheir websiteson only one occasion. While there may have beensomecapacity oss to thosewebsites, he facts do not suggest his interaction esulted n harm,and so could not rise to the level of "interference" or the purposeof establishing he tort. Thedefendantsn the eBay and Register.comcasesaccessedhe plaintiffs' websitesmany, manytimes. Based on the information we have, it would be difficult for eitherpostalcodedownload.com r Parliament to establish that your actions interfered with theircomputersystems. On balance,we think it unlikely that a claim for trespass o chattelswouldsucceed ecausehe necessary lementof direct interferences missing.

In the alternative hat a direct nterferences found, he claimantmust establish hat 1) the chattelwas n the possession f anotherpersonand 2) your interferencewas without lawful justification.The definition of a "person" includes an entity and in this case, another person" applies opostalcodedownload.comnd Parliament's website. Applying the first criteria, both websites'owners "possessed" heir computer systems or, more likely, controlled the systems hroughagreementswith web hosting services). Applying the second criteria, your act of directinterferencewas without lawful justification. in the sensehat you enjoyedno affirmative right toextract he data. Thus, f a court finds a direct interferencewith a chattel,a court may conclude

that you havecommitteda trespasso chattels.

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As a policy consideration, t could be argued hat the court should discourage ntrusions byothers n the future by finding a trespasso chattelswhen peopleaccessnfonnation through heir

computerprograms.

To summarize,a court would not likely fmd a trespass o chattel in this case as there is

insufficient evidenceof an "interference". If a court were to find an interference,a claimant

(4)

TheseParliamentnUIsance:

A private nuisance s "an unreasonablenterferencewith the use and enjoyment of land":Salmond, Cases and Materials on the Law of Torts at 652. A court will measure he

"reasonableness" f an interferencewith reference o the following four factors (340909 OntoLtd. v. Huron SteelProducts (Windsor)Ltd. (1990),73 O.R. (2d) 641 at p. 644):

(1) the severityof the nterference, aving regard o its nature,durationand effect;(2) the character f the ocation of the nuisance;(3) the utility of the defendant's nterprise i.e. its value to the community or to itsusers);and(4) the sensitivity of the complainant.

You have suggested hat your queries occupied both websites for some time, but withoutpennanent or ongoing effects~and apparently without detection or disturbance. In the

circumstances,t is very unlikely that either postalcodedownload.comr Parliamentwould beable to establish an "interferenceH f sufficient severity to support a claim under nuisance.Therefore, a court would probably conclude hat no private nuisancehad occurred o eitherwebsite.

Public nuisance, in contrast, is a criminal act prosecutedby the Crown rather than private parties.

The Criminal Code, RS. 1985, c. C-46, s. 180(2), describespublic nuisance as follows:

(2) For the purposes f this section,every one commits a commonnuisancewho

doesan unlawful act or fails to discharge legal duty and hereby(b) obstructs he public in the exerciseor enjoymentof any right that is common

to all the subjects f Her Majesty n Canada.

Oxford Dictionary defines "obstrucf~ as "to prevent, impede~hinder~or retard the motion~passage, r progressof; to prevent or impede (a physical action or movement)".Basedon thisdefinition~ t would be difficult to establish hat your computerprogram "obstructed'>he publicin the exerciseof a common right. Arguably, your use of both websitescould constituteanobstruction;however, here s no evidencebefore us that any memberof the public was n factobstructed rom using both websites.Moreover, public nuisance equiresan "unlawful act" asthe causeof the obstruction. If a court were to interpret your actionsas amounting o a trespassto chattelsor an nfringementof copyright~or example, his elementwould be met. However, n

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our view of the facts, t is not likely that a court would find that you have committedan unlawful

act. In our view, a Crown proceeding or public nuisances very unlikely.

(5) Misappropriation

The facts raise he possibility of a claim under he general ort of misappropriation.This tort is a

generalized ction for wrongful taking that is common n American urisprudence, ut hasnot todatebeenapplied n Canada. t is essentiallya species f "unfair competition" aw. The ort wasestablishedn the leading caseof International News Servicev. AssociatedPress (1918), 248

U.S. 215 (S.C.), and comprises ive elements:

(i) the plaintiff generates r collects nfonnation at somecostor expense;(ii) the value of the infonnation s highly time-sensitive;(iii) the defendant'suse of the infonnation constitutes ree-riding on the plaintiffs costly

efforts o generate r collect t;(iv) the defendant's se of the infonnation is in direct competition with a product or service

offered by the plaintiff; and

(v) the ability of other parties o free-ride on the efforts of the plaintiff would so reduce heincentive to produce the product or service that its existence or quality would be

substantially hreatened.

In the United States, he tort provides a remedy simply for an unconsented taking" ormisappropriationof a business alue of another. t is limited in application o factual situationsthat closely esemble hoseof INS, meaning he five conditionsshouldbe fulfilled.

As noted, the misappropriation ort has not been applied in Canada.Moreover> here is noexisting "unfair competition" proceeding at common law in Canada that would provideequivalentprotection for databases. he expression unfair competition" s not a term of art in

Canadianor Commonwealthurisprudence.To be remedied, he allegedly unfair practice mustfall within one of the established ausesof action in tort, such as "passingoff' or "injuriousfalsehood".None provide protectionof databases r compilationsapplicable o the present acts.

Even f applicable n Canada, he tort as developedwould have ittle application o the presentfacts. The data n question n the presentcase postal codesand correspondingM.P.s cannot

be said to have the necessaryqualities of value and time-sensitivity to support the tort.Moreover, t cannot be said that your intendeduse of the data competeswith the servicesofpostalcodedownload.comalthough the same cannot be said of the Parliamentarywebsite).Moreover, n both cases,he dataobtainedwas publicly availabledata. In a very real sense, ourcomputerprogrambuilt upon the work of others o saveyourself abour. Your programdid not

appropriate ata hat eitherwebsite owner could describeas exclusiveor proprietary.

On balance,we do not feel that you face a realistic chance f a claim for misappropriation.

Other Considerations-DatabaseLegislation

At the heart of your liability concern s the generalsense hat you have eapedwhere anotherhassown. Databases re constructed, ot found, and often at considerable xpense.Courts facedwith casesunder similar facts often feel a restitutionary mpulse: where somethingwas worthtaking, t was worth protecting. In fact, Canadian aws currently ace a "gap" for the protection

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of unoriginal compilations of data. If selectedand arranged n a purely mechanical ashion,copyright aw will not offer a remedy o the original compiler or a second omer'sappropriationof that data. This is not really a gap so much as the deliberatepolicy of the law to rewardauthorial effort; that is, to reward creative abour rather than merely industriousness.Where acompilation acks udgment in its selectionand arrangement, opyright law relegates t to thepublic domain so that others may in fact build upon that labour. This policy is not so much a

"gap" as a dedication o the commonuseof alL

Nonetheless, atabasemarketershave obbied heavily to close his "gap" with specific databaselegislation. The EuropeanUnion has granteddatabases rotection under a unique right definedin the Directive 96/9/EC of the EuropeanParliament and of the Council of 11 March 1996 onthe egal protection of databases. rticle 7(1) oithe EU Directive states:

"Member Statesshall provide for a right for the maker of a database hich showsthat there has been qualitatively and/or quantitatively a substantial nvestment neither the obtaining, verification or presentation of the contents to preventextraction and/or reutilization of the whole or of a substantialpart, evaluated

qualitatively and/orquantitatively~ f the contentsof that database."

This Directive has yet to be fully implemented. Were you to fall within the jurisdiction of anation with laws implementing this Directive, arguably, your actions would fall within theprohibition of this Directive. However, he Directive hasno application o Canada, nd Canadaotherwise acks equivalentdatabaseegislation. However, he time may come n the not distant

future when his stateof affairs changes.

Advice

We have eached he following conclusions:

1. You probably did not infringe copyright because he sourcesyou obtained data fromwould not likely meet the test of originality. If either sourcewere to be found original,there is a good chance that you would be found to have infringed copyright.Nevertheless, either website owner has protestedyour actions. You accordingly ace

little risk on this front.2. You likely did not breachany contractwith either websites. It would be very difficult to

find a binding contractbetweenyourself and either website owner, or if one was found,that your actionsbreached he terms of that contract.Accordingly~you bear ittle risk ofhaving one or both of the websites'ownerssue or breachof contract.

3. You probably did not commit a trespasso chattels.Again, sinceneither website owner

has protested our activities~ ou face ittle risk of having one or both websites'ownerssue or trespasso chattels.

4. You likely did not commit a private or public nuisance.Your queries rom your computerprogram likely did not causeeffects on either website sufficient to ground an action.Again~neitherwebsite owner hasprotested our actions.

5. Finally, it is very unlikely that you would face an action for misappropriation ince hataction hasnot been ecognized o date n Canadianaw. Regardless,he tort is likely toospecialized o apply o the present acts.

Your activities appear o fall within a recognized gap" in Canadian opyright aw with respect

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to unoriginal compilationsof data. Specializeddatabaseegislation n other urisdictions mightcapture his sort of activity. In Canada, rovided no other ortuousconduct suchas a trespassochattels)accompanies our activities, sucha taking s lawful.

You have suggestedhat you would like to make he dataavailable o the public in the fonn of a"M.P. Look-up" utility, similar to that offered on the Parliamentarywebsite. Basedon the facts

aswe understandhem andour legal analysis,you have hree optionsavailable o you:

1. Do not offer the datayou havegathered;2. Seek written permission from Parliament's website and postalcodedownload.comhat

allows you to:a. extractdata rom their websitesusing your computerprogramandb. offer your data o somebodyhrough a CreativeCommons icense;or

3. Offer your work through a CreativeCommons icense or your data without seekingany

permission.

The first option for you is to not offer your computerprogram o anybody.This option may be

attractive f you are highly risk averse,meaningyou want to avoid all risk, and you are satisfiedusing he data you have collected or the benefit of your associates nly. However, f you wouldlike to offer your data o others,you shouldconsider he other options.

The secondoption (obtain permission)would preclude any potential for a downstreamactionbasedon the nature of your data collection activities. This option again minimizes your legalrisk, but introduces ignificant costs n the form of transaction egotiationand potential icensingfees. This option also protects hird partieswho might associatehemselveswitp your product.such as ISPs or web hosts. A related option is to pay for the rights to the data,which you haveinformed us are availableon the market at significant cost. To avoid thesecosts,and f you arewilling to take on more risk for yourself and the potential third party, you might consider he

third option.

The third option embraceshe risk of facing a lawsuit for your actions.Compared o the othertwo options, this option carries he greatest egal risk. That said, on our analysisof the factsavailable o us, that risk is minor. In other words, it is possible hat one or both of the websiteownerscould launch a lawsuit. Such a lawsuit, n our view, would not likely be well-foundedatlaw; however, here s always he possibility that a court could fmd otherwise.This option alsocarriesa certain amountof legal risk for personsassociated ith your service such as your ISPor web host). Copyright is a form of property right; accordingly, nfringement s a matter ofstrict liability. For example, hird parties o whom you licenseyour servicewould also be liablefor damages houlda court fmd your service nfringed copyright.

On balance>and given the absence of any protest on the part of the owners of thepostalcodedownload.comnd Parliamentarywebsites,we regard he risk of an action minimal.While publishing your serviceon a website cannotbe characterized s entirely without risk, thatelementof risk is so small as to warrant scrappingyour plans only if you and your partnersare

highly risk~averse.

We trust this response s helpful. Pleasedo not hesitate o contact us if anything remains

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unclear,or if you require urther adviceon this matter

truly,ours

JlfJ-/L t<O~Rhoderica Chan,

CIPPIC Intern

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David Fewer,Legal Counsel

Documents

2005-04-05 CIPPIC Paul Schreiber