Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Userss Rights?

Valentino, Lisa Di

doi:10.2139/ssrn.2396028

Cited by 1 publication

(1 citation statement)

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“…For example, if a website’s terms of use prohibit data scraping, the fact that a user must breach contractual obligations in order to harvest the data might mitigate against a finding that this is fair use or fair dealing. Some scholars have argued that rights holders should not be allowed to alter fair dealing/fair use exceptions through contracts of adhesion (Elmahjub and Suzor, 2017; DiValentino, 2014; Elkin-Koren, 1997) but this is an area where the case law is still unsettled. The presence of robots.txt protocols to signal that scraping is not permitted might also be considered relevant in a fair use/fair dealing analysis.…”

Section: Discussionmentioning

confidence: 99%

Ownership and control over publicly accessible platform data

Scassa

2019

OIR

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Purpose The purpose of this paper is to examine how claims to “ownership” are asserted over publicly accessible platform data and critically assess the nature and scope of rights to reuse these data. Design/methodology/approach Using Airbnb as a case study, this paper examines the data ecosystem that arises around publicly accessible platform data. It analyzes current statute and case law in order to understand the state of the law around the scraping of such data. Findings This paper demonstrates that there is considerable uncertainty about the practice of data scraping, and that there are risks in allowing the law to evolve in the context of battles between business competitors without a consideration of the broader public interest in data scraping. It argues for a data ecosystem approach that can keep the public dimension issues more squarely within the frame when data scraping is judicially considered. Practical implications The nature of some sharing economy platforms requires that a large subset of their data be publicly accessible. These data can be used to understand how platform companies operate, to assess their compliance with laws and regulations and to evaluate their social and economic impacts. They can also be used in different kinds of data analytics. Such data are therefore sought after by civil society organizations, researchers, entrepreneurs and regulators. This paper considers who has a right to control access to and use of these data, and addresses current uncertainties in how the law will apply to scraping activities, and builds an argument for a consideration of the public interest in data scraping. Originality/value The issue of ownership/control over publicly accessible information is of growing importance; this paper offers a framework for approaching these legal questions.

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Section: Discussionmentioning

confidence: 99%

Ownership and control over publicly accessible platform data

Scassa

2019

OIR

View full text Add to dashboard Cite

show abstract

Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Userss Rights?

Cited by 1 publication

References 6 publications

Ownership and control over publicly accessible platform data

Ownership and control over publicly accessible platform data

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