Zomato v. Burrp | Beyond Copyright

Last month, accusations flew thick and fast between two Indian websites which provide restaurant listings with one accusing the other of illegally scraping its data and thereby copying its listings. The first website, Zomato alleged that it discovered this “theft” when some data, unique to its website showed up on Burrp. As pointed out by Zomato, in some cases (>1% of its total directory listings), it ties up with a restaurant to get a special and unique telephone number on which orders can be taken. These numbers (as well as some GPS coordinates which are not publicly available) were found on Burrp. On finding this out, Zomato stated on its company blog:

“Overall, we don’t and can’t really know the extent to which our content has been copied (or uploaded by users!), we are afraid that this might be a large amount of content. It hurts us in our organic search engine rankings, make us lose traffic (directly and indirectly), and also hurts the morale of our team. Given the amount of effort we put into Zomato, there is no way we are going to take this lying down.”

Burrp’s immediate response was that it did not copy the listings and it was a “user submission” which got past its verification procedure. Subsequently the matter seems to have been resolved between both parties without going to court. Though what piqued my interest into writing on this, was an interview subsequently given by Vishal Anand, Burrp’s Business Head to Medianama in which he stated that, “India’s IPR laws allow any yellow pages business to list names, addresses and other contact details of businesses and no one has a copy right per-se on this.

On the issue of IPR not protecting a yellopages, the point is well taken. However, this does not put the entire matter to rest. If one looks at the Copyright Law in India, it does provide protection to databases provided there a certain element of creativity in them, even though its individual constituents such as phone numbers may not be capable of copyright protection. Hence, the starting point for any determination of the legality is questioning whether databases which contain restaurant listings are capable of copyright protection.

In this respect the Supreme Court’s holding on the copyright protection available to legal databases provides a useful reference point. In Eastern Book Company v. DB Modak, in which the Supreme Court rejected the “sweat of the brow” doctrine, (which conferred copyright on works merely because time, energy, skill and labour was expended, that is, originality of skill and labour), and held that the work must be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author.

Here the Supreme Court mediated two extreme positions i.e. “the sweat of the brow” on the one hand, and “modicum of creativity” and stated that it preferred a higher threshold than the doctrine of “sweat of the brow” but not as high as “modicum of creativity”. The practical application of this rule would mean that:

  • not every effort or industry, or expending of skill, results in copyrightable work
  • only those which create works that are somewhat different in character, involve some intellectual effort, and involve a certain degree of creativity can be offered protection by copyright law.

Now it is quite obvious that the copyright protection over the individual elements, viz. the telephone numbers, the name of the restaurant, the address, are elements which cannot be protected individually as gathering them (while does involve labour), does not involve creativity, what happens to the entire database ?

In this respect if one looks at the entire Zomato Sitemap it does not organize the restaurant by any “creative” standards, infact arranging them as per their budget, cuisine, location or reviews would not involve much creativity in my opinion. All these are sorting features which are rather easily reached and then the sorting is carried out by an automated algorithm (please correct me if I am missing something here). For example the reason why a telephone directory does not enjoy copyright protection as a database is because it lists telephone numbers alphabetically as to the name of a person.

This is not to say that it should not enjoy any protection. To my mind the legal issues in this case could certainly go beyond copyright infringement. These may would include:

a) Breach of Contract Claims as per the Terms

Whenever you access any website its terms binds the visitors. These terms of use act as a contract which permits the user to access the website. This layer of the law goes above and beyond the one which is provided by copyright law.

Coming to the specific clauses of the Terms of Use, Zomato, as most websites has a terms of service which prohibits the scraping of its data

“You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.”

It also states that,

“You should be aware that Content (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to Zomato (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by Zomato or by the owners of that Content, in a separate agreement.”

Here even though there is no express prohibition, limiting the use of data made available on Zomato (which would be advisable for them to put in their TOS), if the data has been scraped then there are good grounds for initiating legal action on grounds of a breach. This would especially be usefull in the limited context of the “proprietary” data which is uniquely available on the Zomato website.

b) Unauthorised Access under the IT Act

The IT Act also contains a prohibition against unauthorized access under Sec. 43(A) which it states that, “if any person without permission of the owner”, “accesses or secures access to such computer”, then such person is liable to pay damages by way of compensation. Now unauthorized access does not only mean a hacker breaking into the system but it also includes a person who exceeds the level of access. The level of access which is defined by the “Terms of Use” will control the meaning as to the permissiveness and pervasiveness of the access. Hence, if the data is being scraped by automated BOT which is clearly prohibited by the terms, then there may be grounds for placing liability. This is presuming the data is scraped by an automated program which is happens often in such cases.

c) Tresspass as to Chattels under Tort Law

Another intresting legal ground to examine is trespass to chattels. The trespass to chattels tort has evolved from over time and has been extended in similar cases where automated bots scrape data from websites affecting server performance. Some instances where this tort has been analysed and applied by foreign courts to internet disputes include, Ebay v. Bidder’s Edge, and Ticketmaster Corp. v. Tickets.com.

So what do you think, should there be a free reign over such databases. It is undeniable that greater data usability offers efficiency in the internet market place, but does such an absolute position disincentive gathering of data itself?

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