Out-Law Guide | 07 Mar 2007 | 11:36 am | 4 min. read
This guide is based on UK law. It was last updated in September 2008.
An example is dartmaps, a site that shows the real-time locations of trains in Dublin. It works by scraping the real time suburban rail data from IrishRail.ie, writing it to XML, then plotting it onto Google Maps, with the help of the city's routes and stations data file. As you view the site, you see the movement of each train.
Another example is the use of web (or screen) scraping methods to create aggregator sites, such as the ever increasingly popular price comparison websites. Music and video mashups are also popular, remixing material to produce a new song or video montage.
Those involved in creating mashups should exercise considerable caution where material is taken from a third party source without permission, as their activities are likely to amount to an infringement of copyright and/or database rights.
Copyright infringement will occur if the whole or a substantial part of a copyright work is copied or adapted without the copyright owner's consent. What counts as a substantial part is more a question of quality than quantity and so, for example, a small but important part of a work such as a key clip from a video or the riff in a song (which may only be a few bars long) could be deemed to be a substantial part of the work in question. In addition, mashups are unlikely to fall within the fair dealing exceptions to infringement.
For more information on copyright infringement, please see our Guide entitled Copyright: the basics.
A database may be protected by copyright and, additionally or in the alternative, by database rights. A database will be protected by copyright if it meets a higher standard of originality than that which normally applies to copyright works. An owner of a database must show that skill and labour of the author has been directed to the selection or arrangement of the contents of the database (and not merely the gathering of data), such that the database constitutes the author's "own intellectual creation".
However, even if it does not qualify for copyright protection, a database may nevertheless attract database right protection if there has been a substantial investment in obtaining, verifying or presenting its contents. A database right will allow the owner to prevent others from extracting or re utilising the whole or a substantial part of the database's contents (being either substantial in terms of quantity, or in terms of quality as judged by the scale of investment in the part concerned). The database owner will also be able to prevent others from systematically and repeatedly extracting or re utilising insubstantial parts of a database if, taken together, this amounts to a substantial part and, in doing so, prejudices the investment made by the owner.
For further information about the protection of databases, please see our Guide Database Rights: the basics.
Following the 2004 ruling of the European Court of Justice (ECJ) in the William Hill dispute against the British Horseracing Board, the scope of database right has been given a narrow interpretation. Databases will only be protected where the relevant investment has been made in seeking out, verifying and/or presenting independent materials, as opposed to any investment which may have been made in creating the materials comprised in the database in the first place (the latter not be relevant for these purposes). Owners of databases may therefore find it difficult to mount a successful challenge on the basis of a database right if they cannot show that they have expended the necessary resources in finding, checking or presenting the contents of their databases, despite the fact that they may have spent considerable time and effort in creating the contents themselves.
For more details on the William Hill and British Horseracing Board case, please refer to our Guide Legal protection for databases: case report.
Whilst many companies welcome the extra business that aggregators (such as price comparison website operators) bring them, some do not. This activity may, for example, reduce traffic to their own sites (which can have a knock on effect on advertising revenue) and can result in consumers having to pay higher charges than they otherwise would have done to accommodate the middleman.
Those seeking to prevent third parties from using their data should consider expressly prohibiting screen scraping or any other commercial use of their website in their terms and conditions. This may deter third parties from making use of their data. However, there may still be difficulties showing that the terms have been sufficiently brought to the user's attention (and therefore difficulties showing that they legally binding) unless the use of the website is made conditional on the user's acceptance of them which, in many cases, may be commercially impractical or undesirable. In any case, there may be difficulties in arguing that any terms have been accepted where, through the use of automated screen scraping tools, the acceptance stage is by passed or not otherwise accepted by a human in the traditional sense.
In August 2008, Ryanair went a step further when it announced that it would be cancelling all flights booked through screen scraping websites, as being a more effective deterrent when the legal protection may be uncertain.
Owners may also find it more effective to prevent re use of their materials by using technological measures. For example, many website operators use coding techniques like CAPTCHA ("Completely Automated Public Turing test to tell Computers and Humans Apart") which show users partially obscured, stylised text which users then have to type into a box before they are allowed to access the information in question. These measures should be regularly reviewing as people begin to find ways of circumventing them.
If a mashup uses a third party's trade mark or logo without permission in a way which is misleading or which may suggest a commercial connection between the mashup operator and that third party, then the brand owner may also be able to bring a claim for trade mark infringement and/or passing off.