Screenscraping - The legality of harvesting data from third party websites
 
Data is king. However, to commission its collection is often unviably expensive. The internet offers unlimited potential for harvesting data that others have compiled but is this legal?

There are various legal issues to consider focussing particularly on Copyright and Database Rights. Most of you will be fully conversant with the concept of copyright. Database Right is a new species of intellectual property which came into existence in 1998. It protects investment in obtaining, verifying and presenting the contents of a database as opposed to the intellectual effort in creating it. Such intellectual effort continues to attract copyright protection. Thus, Database Right subsists independently of but complementarily with copyright. It also overlaps with the law of confidence.

Website Owners' Rights

It is probably illegal to gather and to make available to the public in the UK (or elsewhere in the EU) data obtained by spidering or screenscraping others' sites in the UK/EU without the owners' consent.

I insert the qualification "probably" because databases are only protected by database right to the extent that the person claiming the right made a significant investment in obtaining, verifying or presenting the data. The European Court has held that investment in creating data (as where a sporting fixture list is created) does not qualify. However, I would expect that most trading websites do make a significant investment in obtaining, verifying or presenting the data (as interpreted by the European Court). You should also bear in mind that databases are also protected by copyright to the extent that the selection or arrangement of the contents is original.

Some people argue that because a particular website is in the public domain, consent could to harvest the content could be inferred. However, by analogy with decisions on goods sold under trademarks, I think that merely putting information on the internet would not be regarded as consenting to its reproduction using scraping or similar technologies. There would have to be a clear indication in some form that the owner of the website consented.

Acquiescence can provide a defence, but for it not to be infringing, the owner of the rights normally has to do something positive to encourage the screen-scraping and the person doing it must rely on the encouragement.

Posters' Rights

If you are contemplating harvesting content from someone else's website, you need to consider not only the rights of the website owner but also the rights of anyone who has placed a posting on a website as it is possible that the poster might be able to object if its original text or graphics or branding are reproduced without its consent. The poster may own copyright in the content it has posted if the posting contains original text or graphics created by that person (or in which copyright has been assigned to that person). That person will also normally own any trademark rights in its branding if this is included. However, the operator of the website will normally own database right in the collection of postings, and this right is infringed if a "substantial" part of the collection is made available to the public or transferred from one medium to another in the UK/EU without its consent. The substantial part test can satisfied by a one-off substantial transfer or a bit at a time if done repeatedly and systematically. The website operator may also own copyright in an original selection or arrangement of the contents of a database.

Thus, you need to take into account the potential for legal action against you by either the owner of the website and/or anyone who has posted content on that site which you then harvest.

Of course, the situation is different if you obtained the express consent of the operator of the website on which the material was originally posted. There could however still be an infringement of the posters' rights as discussed above and also of data protection legislation (i.e. legislation protecting personal data) if the data scraped contains personal details relating to living individuals and such personal data are held or transmitted without their consent.

Simon Halberstam is a lawyer specialising in the fields of IT and E-Commerce law
and is head of IT and E-Commerce law at Sprecher Grier Halberstam LLP.  For further input, please contact him on 020 7264 4500 or see weblaw.co.uk

Simon Halberstam 020 7264 4500 simonh@sghlaw.com