Intellectual Property

Protecting IP rights from data-scraping sites

By Kirsten McMahon, AdvocateDaily.com Managing Editor

With the vast amount of information collected and available online, Toronto intellectual property lawyer Kevin Fisher says there’s a broader debate about who owns and benefits from data that has been meaningfully organized and contextualized.

Fisher, partner with Gardiner Roberts LLP, frequently advises clients in intellectual property law and has acted on many cases involving copyright and trademark legislation and commercial rights. He tells AdvocateDaily.com there is a proliferation of businesses that are trying to leapfrog into various industries by using what has already been compiled or obtained by other parties.

He says the travel sector is one of the clearest examples of an industry that has been disrupted by data-scraping. A consumer can visit one of the many aggregator sites and receive up-to-date information on flight or hotel prices — all of which has been scraped from other websites.

“This practice has opened up a larger conversation as to how business should be able to claim and maintain an enforceable intellectual property right," Fisher says. "Can you use provisions of the Copyright Act related to technical protection measures as a strategy to enforce or maintain rights in the content of those online databases?”

He says the key could be in how the information is organized and described.

“If you just call it data then you run the risk of somebody saying, ‘You're just collecting information without adding any value to it that would make it unique enough to claim an intellectual property right,'” Fisher says. “But it’s not just data — some of these businesses are customizing this information to inform consumers about what's relevant and important.”

If the information is cultivated and organized by a business with unique characteristics then there could be intellectual property rights attached to it, Fisher says.

“If it’s shaped in such a way so as to be value-added then other people should not simply be able to scrape that information to monetize it for themselves, even if it’s publically accessible,” he says.

He notes data gathering and corresponding scraping is becoming a big issue and points to the Sidewalk Labs development in Toronto’s waterfront district. The controversial project has triggered data and privacy concerns due to the vast amounts of information it could collect through phones, sensors and other devices used in the neighbourhood, Global News reports.

“A project like this brings up questions of what is public and private?" Fisher says. "What is data? Can somebody just cherry-pick data and use it for their own commercial purpose, when you've done all the work, spent all the money and they just come along and now compete with you in the same space?

"There are plenty of examples of businesses that take the information and data that somebody else has prepared and they just repackage it in a different way. That may be their business model, but personally I think those people who put in the effort, energy and expense should be the ones who get rewarded.

"It’s a different story if the business is paying a licensing fee, but I suspect in many cases that they're not," Fisher adds.

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