Rule: treat MLS copyright as LIVE, not settled. 2017 FCA originality obiter was revived by 2023 FCA 70 (IMS v. TRREB)
Rule
Rule. Do not assume MLS data is copyright-free. The 2017 FCA originality finding was obiter; 2023 FCA 70 (IMS v. TRREB) revived the question.
Why. FCA 2017 (2017 FCA 236) — in obiter, endorsed Tribunal's conclusion that the TREB MLS compilation lacked the originality (skill/judgment/labour) for copyright; TREB "had not put forward persuasive evidence" + IMS v. TRREB (2023 FCA 70) — FCA allowed TRREB's copyright claims to proceed; prior 2017 obiter did NOT finally decide originality of this (different/updated) MLS work; copyright is live again, not settled — obiter is not binding; the FCA 2023 explicitly held the prior obiter did NOT finally decide the originality of this MLS work.
How to apply. When designing any product that ingests MLS data and produces derivative outputs, plan for a future where copyright is held to attach. Build the consent + license chain that survives that finding, not just the originality-failure finding.
Related entries
Depends on
- research-notes Research notes (capture-layer): inside the MLS box — what an Ontario member agent's account exposes, what goes unused, and what they're licensed to do with it (June 2026)
- reference FCA 2017 (2017 FCA 236) — in *obiter*, endorsed Tribunal's conclusion that the TREB MLS compilation lacked the originality (skill/judgment/labour) for copyright; TREB "had not put forward persuasive evidence"
- reference IMS v. TRREB (2023 FCA 70) — FCA allowed TRREB's copyright claims to proceed; prior 2017 obiter did NOT finally decide originality of *this* (different/updated) MLS work; **copyright is live again, not settled**