Databases are protected in the UK by the Copyright, Design and Patents Act 1988 and the Copyright and Rights in Databases Regulations 1997. A database right is infringed if a person extracts or re-utilises all or a substantial part of its contents without consent.
A recent High Court judgement, 77m Ltd v Ordnance Survey, is a landmark decision in a 3 year dispute over the re-use of data derived from public sector databases. The decision is important for businesses that invest in databases or wish to re-use data published under public sector licences.
The Ordnance Survey ("OS") is the UK's national mapping services agency. It provides services to both public and private sector organisations in the UK. The OS have a variety of services and licences to let users access and share OS mapping data to support business needs.
77m is a SME that created a dataset called Matrix, consisting of and commercialising a database of up-to-date UK land and properties. 77m derived data from at least 18 databases and as a result had access to over 50 million records. They entered into contracts to obtain data with the likes of Her Majesty's Land Registry ("HMLR") and Registers of Scotland ("ROS") who have their own licences with OS.
The initial action raised by 77m
Once the Matrix product was finalised, 77m sought, among other things, declaration that Matrix (which would compete with an OS product called AddressBase) did not infringe any database or copyright pertaining to OS. The action was raised in the Intellectual Property Enterprise Court. OS then responded with a Counterclaim against 77m and the case was moved to the High Court.
The High Court action
The judge gave lengthy and very detailed consideration to various different aspects of 77m's actions. For the purposes of this commentary, the main points for discussion are:
- Whether 77m breached licences with dataset providers in creating Matrix; and
- Whether 77m had infringed OS's database rights.
What 77m did
The Court held that Matrix was created by:
1. Processing address data
77m created a Master Address List by using many freely available sources and the Royal Mail Postcode and Address Finder ("PAF"), for which it had bought a commercial access licence. Another service used was HMLR's Find a Property Service ("FAP").
2. Processing geospatial data
77m also had access to a number of sources of geospatial data. The judge noted the most important of which being the downloaded INSPIRE polygons, which are a map of freehold boundaries in England and Wales. That data is licensed under the Open Government Licence, which is a model licence that enables public bodies to make the data available for re-use for internal commercial or non-commercial purposes.
3. Linking the address and geospatial data and subsequently generating more data associated with the geolocated addresses
77m then linked the Master Address List to INSPIRE polygons. Many sources were used to do this, however the judge spoke at length about a licence 77m and HMLR entered into called "A1 Match".
77m provided INSPIRE IDs to HMLR and in return HMLR would provide property descriptions from the Register of Title for each INSPIRE ID. The A1 property description will describe what sort of property the ID refers to (e.g. an electricity sub-station) but it also gives the address for the property. The terms of the licence were for 77m to confirm if the IDs related to non-addressable sites.
The end result is that Matrix consisted of a good quality Master Address List with each address having a single geocoded point.
The High Court decision
The Court held that:
1. 77m was operating within the INSPIRE Download Terms in relation to the polygons; the geospatial data.
- 77m used the polygons internally in creating Matrix, which was not prohibited under the INSPIRE Download Terms. 77m were not in breach as they did not re-use the polygons on their own - they linked them to other address data in creating Matrix.
2. 77m breached the HMLR A1 and FAP, and ROS Land Values licences.
- The A1 licence was clear that: use was limited to confirming whether the INSPIRE IDs related to non-addressable sites; data must be destroyed following use; and the information provided by HMLR would not be made use of by 77m for any other means.
- In respect of the FAP, the judge was clear that 77m 'scraped' the data, which was expressly forbidden under the relevant licence.
- The terms of the ROS licence were that data was "Land Values plus House Type" and could only be used by companies wishing to develop a website containing house sale information. Therefore 77m's use of the data was not licensed by ROS.
3. 77m infringed OS's database rights in the Topo and AddressBase products respectively by using centroids from ROS Land Values dataset, and the addresses retrieved using the A1 licence and scraping the FAP.
So, although the download of geospatial data was not in breach, that data was then linked to addresses that were retrieved in a prohibited manner.
This case is a good reminder of the complex issues involved in creating new databases from third party datasets. If you are deriving data from a source such as the Ordnance Survey to create your own database, it is essential that you ensure the purpose for which you intend to re-use is covered in the licence.