The court also considered whether copying the listings infringed Century 21’s copyright (and the copyright of the agents who took the photographs and wrote the descriptions). The court conducted a lengthy analysis and concluded:
- copying the full length property descriptions for several months constituted copyright infringement
- copying truncated, shorter descriptions did not (an example the court provides is “212-819 Hamilton St, Vancouver, B.C. V6Z 6M2 $285,000 – 1 Bed, 1 Bath – Great Newly Updated Jr 1 Bedroom at 819 Hamilton. This is a great West facing 1 bedroom suite which has lots of great. â€¦”)
- copying photographs of properties constituted copyright infringement
The court then considered whether the use might qualify as fair dealing. It noted that commercial use (as in this case) is only one factor. However, attempts to argue that the use of work was “transformative” failed as the court ruled that transformative use is not a category under fair dealing.
Having concluded the copying was not fair dealing (the court also says the amount of the dealing is not fair and that there were alternatives), the court considered the appropriate statutory damages for the infringements of the agents’ copyright. At first it arrived at the low end of the scale at $500 per infringement, but that would have led to a $64,000 award. The court ruled that that would be a disproportionate award and cut it in half to $250 per infringement or $32,000. The court also issued a permanent injunction prohibiting any further breaches of the terms of the Century 21 site and declined to find that Rogers authorized the copyright infringement merely by providing the idea, website and search engine for the Zoocasa site.
While this is a long case – 119 PDF pages – it is hard to think of a Canadian case that covers as many e-commerce and Internet issues. Given the sheer number of legal issues canvassed in the case, it will be interesting to see whether Century 21 or Rogers decide to appeal.