Database rights: infringement by extraction or re-utilisation

By Audrey Horton

02-2020

Summary

The High Court has held that a geospatial address dataset creator was liable for infringement of database rights.

Background

Database rights are infringed if a person extracts or re-utilises all or a substantial part of the contents of the database without the owner's permission (regulation 16(1), Databases Regulations 1997 (SI 1997/3032)) (1997 Regulations). Extraction is defined in regulation 12 of the 1997 Regulations as the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form. Re-utilisation is defined as making the contents of a database available to the public by any means.

Facts

S created a dataset called Matrix setting out the geospatial co-ordinates of all residential and non-residential addresses in Great Britain, for which S wished to sell access. S had created Matrix by combining large amounts of data from various datasets. The data derived from O.

S did not contract with O but with the Land Registry and Registers of Scotland (RoS), which license the relevant data from O. S also accessed data including addresses and geospatial co-ordinates made public under the Open Government Licence (OGL data).

In electronic mapping, parcels of land are defined by polygons. In 2014, the Land Registry granted a bespoke licence to S (the licence) under which the Land Registry matched property descriptions to specified polygons on S’s request.

In 2015, O asked the Land Registry about the supply of information to S. The Land Registry subsequently stopped providing information to S under the licence.
S claimed that O had procured the Land Registry to breach its contract, the licence, with S. O counterclaimed for database right infringement.

Decision

The court dismissed S's claim for procuring a breach of contract and partially upheld O's claims for database right infringement. Before deciding the issue of database right infringement, the court had to decide whether S had acted within the terms of the licences.

S had gone beyond the single use of data permitted under the licence and so breached that licence. S’s use of information from RoS, combining geolocations and addresses from RoS to ascribe good geolocations to its own address list, also went beyond permitted uses and was not licensed. S had used the OGL data lawfully. Therefore, the database right claims relating to alleged infringements in O’s databases by the use of data from the RoS dataset and addresses from the Land Registry were still live.

S's use of the RoS data amounted to extraction which was infringement, as opposed to consultation which was not. It was irrelevant that S had extracted the data from the RoS dataset rather than O’s database. Extracting contents from one database A that was itself extracted from another database B was an act of extraction of the contents of both databases. However, to be an infringement of database right in B, it was insufficient for that extracted to be a substantial part of A: they must be a substantial part of B as well. It was also irrelevant that the data transferred only temporarily and then discarded; they had been transferred to the memory of a computer, another medium.

The use was not mere consultation. The fact that the extraction of the data was ultimately something that led to another database being produced was irrelevant. If what S did was an act of extraction, it did not matter that S used the data for its purposes and then discarded them. While re-utilisation involved making available to the public, extraction did not have to. The concept of consultation might be limited to a person merely reading data on a screen, where the only possible other medium to which the data was transferred was the person's brain, not the relevant kind of medium. If things were written down on a large scale then there might be extraction. In any event, S's activity was not limited to onscreen reading.

Ultimately, what deprived S's activity of the character of mere consultation was its scale. Where a user, even a commercial one, wished to consult a database to learn something about an entry, they consulted the database. However, a user who took all or a substantial part of a database's contents, and transferred them to another medium so that they could use them, appropriated to themselves a substantial part of the investment that went into creating the database. Protecting that investment was the purpose of the database right. The scale of S's actions put them on the extraction side of the line.

S had also used the addresses provided under the licence to match them with an existing address which S already had. It did this by copying the provided addresses into a temporary computer memory. The number of addresses used represented a substantial part of the Land Registry’s address data. Although for each attempt at matching a given address, the address in the temporary memory was discarded afterwards, for a successful match S's address was now linked to Land Registry data. The matching of millions of addresses obtained via licence with S's address list amounted to extraction of a substantial part of the relevant database.

Comment

This decision is interesting for its analysis of the distinction between the unauthorised extraction or re-utilisation of the contents of a database, which is prevented by the database right, and mere consultation of a publicly accessible database, which does not by itself amount to database right infringement.
Infringement occurred here even although the data that was extracted did not ultimately find its way into S’s commercial dataset: it was sufficient that the extraction led to the dataset being created. Extraction occurred regardless of whether the extracted data was eventually discarded, and, unlike re-utilisation, did not necessarily involve making the data available to the public.

Case: 77m Ltd v Ordnance Survey Ltd [2019] EWHC 3007 (Ch).

First published in the January & February 2020 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.