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McKeown’s Brand Management in Canadian Law Newsletter | copyright infringement

A recent decision of the Federal Court considered whether using copies of keyword meta tags in the metadata of a website constitutes copyright infringement.



McKeown’s Brand Management in Canadian Law Newsletter



By: John McKeown



Case selection: Red Label Vacations Inc. (redtag.ca) v. 411 Travel Buys Limited (411travelbuys.ca), 2015 FC 19

I.2 — The Legal Effect of the Use of Meta Tags

A recent decision of the Federal Court considered the legal effect of the use of copies of the plaintiff’s keyword meta tags by the defendant in the metadata of its website.

Meta Tags

A meta tag is a computer code contained on a website which is invisible to an individual but which enables a search engine or a web browser to identify that particular website.

Meta tags are usually placed on the header of the webpage. Typically they can be viewed by right clicking the page and choosing “view source” or “view page information” depending on the Internet browser being used.

The Plaintiff

Red Label Vacations Inc. (”Red Label”) is a travel business that offers online travel information services and bookings through its website redtag.ca, catering mostly to the Canadian market. Red Label owns three registered trademarks: REDTAG.CA, REDTAG.CA VACATIONS, and SHOP. COMPARE. PAYLESS!! GUARANTEED (the Red Label trademarks).

The Defendant

411 Travel Buys Limited (411 Travel Buys) is an online travel agency offering information to customers through its website, and the availability of agents over the phone to create bookings for travel and travel-related services. It also caters primarily to the Canadian market.

411 Travel Buys created a website which went online in January 2009. At that time a number of the webpages included some identical or very similar content to Red Label’s webpages. This information included the title, description and keyword meta tags, and the terms “red tag vacations” and “shop, compare & payless”. The content was not visible to customers visiting 411 Travel Buys website, and was located only in the webpage’s metadata.

After an initial oral complaint the 411 Travel Buys website was taken down entirely and the allegedly infringing content was removed over the course of two days. The offending content was present on the website no longer than from early January to mid-March 2009.

During the period from February to November 2009, Red Label experienced a lull in web traffic and revenue to a higher degree than in previous years. The estimated period of negative effect or impact on Red Label`s business created by the 411 Travel Buys alleged infringement was from March to November 2009.

The Action

Red Label commenced an action against the 411 Travel Buys for copyright infringement, trademark infringement, passing off and depreciation of goodwill in the Red Label trademarks. The action proceeded to trial.

Copyright

411 Travel Buys raised a preliminary objection to Red Label’s claim as not being properly pleaded. However, 411 Travel Buys did not challenge the sufficiency of the statement of claim until trial, having plead over by simply denying the claims relating to copyright.

The judge said that to properly plead a claim in copyright, a party should state the identity of the work, the nationality of the author and the place of first publication. As there was little or no issue concerning these matters and 411 Travel Buys had not attacked the statement of claim before trial the judge concluded that this was not a valid objection.

It does not appear that the plaintiff filed a certificate of registration. This should be done in virtually all copyright cases. The certificate is prima facie evidence of the subsistence of copyright with the result that the party seeking to dispute this bears the onus of leading credible evidence to the contrary.

There was no dispute that 411 Travel Buys copied Red Label’s meta tags, when it copied the title tags, meta descriptions and meta keywords on 48 pages of its website. On some pages, even spelling errors in Red Label’s meta tags were reproduced.

The judge said that a metatag was a word or small phrase embedded in the source code of a website which is not visible on the actual page itself. When a person types a phrase into the search bar of a search engine, such as Google, it uses an algorithm to search through the internet looking for web pages with those particular words in them. The greater the number of times a term appears in meta tags and in the text of the webpage itself, the greater the chance that a search engine will choose that website to be listed higher on the list of search results. Search Engine Optimization is an important step in marketing a company’s wares or services. While Google does use some metatag data in their search rankings, it had not used keyword meta tags for many years prior to 2009.

Originality

In order for there to be valid copyright in a work, there is threshold requirement that the work must be original. The work need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. In this context “skill” means the use of one’s knowledge, developed aptitude or practised ability in producing the work. Judgment means the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. The exercise of skill and judgment necessarily involves intellectual effort.

It was observed that whether a metatag could be subject to copyright was being debated in Canada as well as the United States, England and elsewhere in the world.

In this case, Red Label’s meta tags had been substantially derived from a list of Google key words which were incorporated into short phrases descriptive of travel industry: types of travel, locations, and discounts or deals for consumers. As a result, there was little evidence of a sufficient degree of skill and judgement in their creation or compilation to satisfy the requirement for a valid copyright. While there could be sufficient originality in meta tags to attract copyright protection when viewed as a whole, the substance of the meta tags in issue in the case did not meet the threshold required to acquire copyright protection in Canada.


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