Teresa Scassa - Blog

A recent incident raises important issues about excessive control over data and information. Open data activists, who have long battled to liberate government data will recognize the principles at play here. The difference in this case, is that the data over which control is being asserted are in private sector hands. Yet while the law necessarily provides means for private sector organizations to exercise control over data and information in appropriate circumstances, this control is not without its limits. In this case, the limits may have been seriously overstepped.

A Toronto-area man who posted his own data-visualization based on Toronto real estate data hasreceived a blunt cease and desist notice from counsel for the Toronto Real Estate Board (TREB). The story, which was reported by David Hains in Metro News, explains that the 26 year old data analyst named Shafquat Arefeen created the visualization as a personal project and posted it on his non-commercial website. The visualization, which is no longer available as a result of the letter, provided an overview of housing sales activity in Toronto and contained data that, among other things, showed the differences between listing and selling prices, including data for specific house sales.

The cease and desist letter makes it clear that the TREB believes that the data were taken from its proprietary website. There are some interesting issues around accessing and using data hosted on a web platform, including whether any terms of use associated with the site are binding on the user. The letter, however, does not raise any contractual claims. Instead, it asserts copyright – apparently in the data. Mr. Arefeen denies that he obtained the data from the TREB site. Whether he did or not, the copyright claims are independently worth considering.

It is a basic and fundamental principle of copyright law that facts and information are in the public domain. The Federal Court of Canada has clearly stated: “there can be no copyright in information.”( Nautical Data International Inc v. C-Map USA Inc. at para 11), as has the Supreme Court of Canada: “copyright protection does not extend to facts or ideas but is limited to the expression of ideas.” (CCH Canadian Ltd. v. Law Society of Upper Canada, at para 22).

Copyright law does protect compilations, including compilations of data. Yet, where data are part of a compilation, all that is protected is the original selection or arrangement of the data. In a 2016 decision of the Competition Tribunal regarding the TREB’s data, the Tribunal stated that it was: “not persuaded that TREB owns copyright in the MLS Database, including the Disputed Data. In brief, the Tribunal has concluded that TREB has not led sufficient evidence to establish the level of skill, judgment and labour required for the MLS Database to benefit from copyright protection.” (at para 731)

Let’s assume for the sake of argument that there is a copyright claim to be made. Even in those cases where copyright in a compilation of data is found to exist, a second user who does not take a substantial part of the selection or arrangement of the data does not infringe copyright. If Mr. Arefeen’s visualization was his own original expression of the data that he used, then it would be very difficult to sustain an argument that there was a substantial taking of the arrangement of the TREB’s data. It is not clear whether it constituted substantial taking of any original selection of the data – this is far from an open and shut issue. Yet even if a court were to find substantial taking of a selection, Mr. Arefeen would be entitled to rely upon the fair dealing exceptions in the Copyright Act. The Supreme Court of Canada has mandated a generous approach to fair dealing, and there is every possibility that this non-commercial use might be considered fair – in other words, not infringing. The bottom line is that any claim to either copyright in the data or infringement of any such copyright would appear to be very weak.

The cease and desist letter also contains strong language alleging that Mr. Arefeen’s use of the data was a violation of the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA applies only to personal information that is collected, used or disclosed in the course of commercial activity. Mr. Arefeen’s website appears to be non-commercial – it does not even contain advertising. If this is the case, PIPEDA does not apply. There are also exceptions to the application of PIPEDA where information is collected, used or disclosed for journalistic or artistic purposes. Frankly, it’s hard to see how PIPEDA would apply in this instance.

The cease and desist letter achieved its objective in that Mr. Arefeen took down his data visualization, and it is no longer available to a public according to the newspaper coverage found it useful and interesting. This allows the TREB to maintain control over its closely controlled data about the real estate market in Ontario. It also enables it to restrict public engagement with data that are relevant, interesting and important to Toronto residents. The outcome highlights the imbalance between well-resourced data ‘owners’ and data users – particularly those who act in the public interest. Such users often have limited resources either to pay for data licences or to hire lawyers to push back against excessive claims. The result is far from being in the public interest.

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