Finding the Plot for Database Rights: Ordnance Survey v 77m: Database rights in and infringement of a geospatial address dataset

Background

Ordnance Survey and AddressBase

Since the 1700s the Ordnance Survey (OS) has been the UK’s national mapping services agency, publishing accurate and detailed maps of the topography of the UK.  Before 2015 any database or copyright material created by OS vested in the Crown. Since 2015 when OS transferred its functions to Ordnance Survey Limited, a private company wholly owned by the government, intellectual property created by OS became subject to a Crown Rights Agreement under which intellectual property created before 2015 is owned by the Crown and licensed to OS, and new material is assigned to the Crown and licensed to OS.

OS maintains a number of datasets and is required to license its products on a non-discriminatory basis. OS grants licences to both public and private sector organisations, including licences to permit users access and share their mapping data to support business needs. One product developed by OS is AddressBase which matched 28 million Royal Mail postal addresses (as recorded in the Post Office Address File (the PAF)) to locations within OS mapping data, assigning them unique property reference numbers. As such it was the first address database which assigned geospatial coordinates to each address.  AddressBase and its predecessors are available to the private sector on commercial terms and are not freely available.

A major OS database product is called Topo or the OS MasterMap Topography Layer, a detailed vector spatial dataset of Great Britain with geometric representations of every physical feature and physical boundary; in other words an accurate up to date and detailed map of Great Britain, available to the private sector on commercial terms.

GeoPlace is a joint venture between OS and the Local Government Association. The database developed and maintained by GeoPlace is called the National Address Gazetteer (the NAG) which consolidates spatial address data from OS, local authorities, the Royal Mail and third parties. OS licenses the NAG from GeoPlace, and AddressBase is extracted from the NAG.

77m and Matrix

77m, a start-up company founded in 2010, created a dataset called Matrix setting out the geospatial co-ordinates of all residential and non-residential addresses in Great Britain, with the aim of selling access to it. 77m created Matrix by combining large amounts of data from at least 18 datasets, including the commercial dataset PAF, access to which 77m bought from the Royal Mail. The data included data derived from OS, although 77m did not contract directly with OS but with Her Majesty's Land Registry (the Land Registry) and Registers of Scotland (RoS), which licensed the relevant data from OS.

77m also accessed data including addresses and geospatial co-ordinates made public under the Open Government Licence (OGL data).

As explained by the judge, in electronic mapping, parcels of land are defined by polygons. Each polygon has a centroid: a single point which can be given a geospatial co-ordinate:

In electronic mapping, parcels of land are defined by polygons. An individual polygon is defined by the set of coordinates of its vertices. So a square parcel of land (or building) would have four vertices and the polygon would be defined by four pairs of X-Y coordinates. In order to give a place a single geospatial coordinate a common technique is to use the centroid of the relevant polygon…[2]

77m obtained polygons and matched them with addresses, to create Matrix, without using the polygons in Matrix itself. The Land Registry made a set of polygons available to comply with the INSPIRE Directive which required public authorities to make spatial information datasets publicly available. Their download and use were subject to certain terms. In 2014, the Land Registry also granted a bespoke licence to 77m (A1 Match Licence) under which the Land Registry matched property descriptions to specified INSPIRE polygons on request. In 2015, OS asked the Land Registry about the supply of addresses to 77m. The Land Registry subsequently stopped providing any further information to 77m under the A1 Match licence.

Another service the Land Registry offers, and which 77m used, is a statutory service called Find a Property or FAP which allows users to search for Land Registry titles by clicking on addresses, postcodes or points on a map.

Following the INSPIRE Directive the RoS made a dataset relating to freehold titles available.  However, unlike the Land Registry, the RoS INSPIRE dataset did not consist of polygons, but only a set of "seed points", one for each title, along with a unique ID.  The seed point is the centroid of the relevant property; so it provides the geospatial location for that property but not its boundaries. 

Procedural History

In 2016 77m applied for a declaration that Matrix, which would compete with the OS product AddressBase, did not infringe any database or copyright or other intellectual property right belonging to OS. 77m also claimed that OS had procured the Land Registry to breach its contract, the A1 Match Licence, with 77m. The action was initially brought by 77m in the Intellectual Property Enterprise Court. OS then counterclaimed for database right infringement against 77m and the case was moved to the High Court.

Summary of the Court's decision

The court dismissed 77m's claim for procuring a breach of contract and partially upheld OS's claims for database right infringement. Before deciding the issue of database right infringement, the court had to decide whether 77m had acted within the terms of the licences; if so, then 77m’s activities in relation to OS’s datasets would be shielded from the database right infringement claim; if not, 77m would be subject to the infringement claim.

Construction of licences to ascertain whether use was unlicensed

The court held that 77m had operated within the terms of the INSPIRE download terms.  Therefore the claim for infringement of OS database right relating to 77m's use of INSPIRE polygons or data derived from them failed. However, 77m had gone beyond the single use of data permitted under the A1 Match Licence and so had breached that licence.

The scraping of 3.5 million addresses from the Land Registry's Find a Property (FAP) Service also breached the applicable terms.

77m’s use of centroids from RoS, combining geolocations and addresses from RoS to ascribe good geolocations to its own address list, likewise went beyond permitted uses and was not licensed.

77m had used the OGL data lawfully.

Therefore, two database right claims relating to alleged infringements of OS’s databases were still live: (1) 77m's use of centroids from the RoS dataset; and (2) 77m's use of addresses from the A1 Match Licence and the Land Registry's FAP service.

Infringement of database right by 77m

The relevant law

Databases are protected in the UK by the Copyright, Design and Patents Act 1988 and the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032)) (1997 Regulations). 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), 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.

The court noted a number of important limitations to the scope of the database right relevant to this case. Firstly, database right protects the collection of data, not its constituent elements [3]. Secondly, the protection offered by the right only relates to acts of extraction and re-utilisation.  In particular, where the creator of a database makes the content of the database accessible to the public, the consultation of the database does not, by itself, constitute an infringement [4].

The difference between extraction and consultation was considered by the Court of Justice of the European Union (CJEU) in DirectMedia Publishing GmbH v Albert Ludwigs-Universität Freiburg (C-304/07).  The decisive criterion for extraction was the existence of an act of transfer of all or part of the contents of the database to another medium, regardless of the particular mode of transfer or the fact that the contents of the original database might be arranged differently in the new medium. However the CJEU also reaffirmed that the protection conferred by database right did not cover consulting a database which had been made publicly available for information purposes. Consultation was described as being something which a database owner who has made the database accessible to third parties (free or paid for) cannot prevent them from doing for information purposes.

In Apis-Hristovich EOOD v Lakorda AD C-545/07 the CJEU followed DirectMedia. The court described the transfer which amounted to an act of extraction as implying that the contents of the original database were to be found in a medium other than that database. The difference between permanent and temporary transfer was the duration of storage, so the operating memory of a computer was an example of a place in which temporary storage might take place.

The distinction between consultation and re-utilisation was examined in Innoweb BV v Wegener ICT Media C-202/12 where the defendant operated a meta search engine which enabled its users simultaneously to search various third party websites in real time. As in DirectMedia, the court held that the defendant was not merely consulting the third party websites for information purposes.  Since it provided a form of access to those websites which was different from the access route intended by their owners, the defendant had made available the contents of the websites to the public.

Centroids from RoS: extraction versus consultation

The court held that 77m's use of the RoS centroids amounted to extraction which was infringement, as opposed to consultation which was not. The centroids in the RoS Land Values dataset were derived ultimately from Topo and therefore were part of the contents of an OS database. The processing which 77m carried out to use the centroids to find the nearest INSPIRE seed point involved the temporary transfer of those centroids to the memory of a computer, another medium. It was irrelevant that the centroids were not stored permanently in a new database but instead were transferred as individual items of data, one address at a time, and then discarded before transferring the next one.  

It was also irrelevant that 77m had extracted the data from the RoS Land Values dataset rather than OS’s Topo 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 the database right in B, it was insufficient for those extracted to be a substantial part of A: they must be a substantial part of B as well. In this case they had to be a substantial part of Topo.

Subject to the issue of consultation, this was clearly an act of extraction of the contents of a database. 77m argued that what was done was only an act of consultation and not extraction. The relevant data (centroids) did not end up in a new database and the public who used Matrix would never be presented with the centroid. The geolocation in Matrix was not the (unlawful) centroid but the (lawful) seed point. 77m argued that it was using each centroid for information purposes, i.e. to draw an inference about other data, (the closest seed point).

Although he did not agree with OS that the answer was obvious, the judge concluded in the end that 77m's use was not mere consultation. The fact that OS was trying to stop Matrix and yet Matrix did not contain the centroid, and was not the other medium, was not the key factor. It was irrelevant that the extraction of the data was ultimately something that led to another database being produced. If what 77m did was an act of extraction, it did not matter that it used the centroids for its purposes and then discarded them. While re-utilisation involved making available to the public, extraction did not have to.

The concept of on screen consultation as in DirectMedia might be limited to a situation in which a person merely reads data on a screen, and does nothing else. That was not extraction because the only possible other medium to which the contents have been transferred was the individual's brain, which was not the relevant kind of medium. If things were written down on a large scale then there might be extraction but the act of on screen consulting was not infringing. The judge commented that it was difficult to see why consultation by a user at a terminal should be exempt, while consultation by a user accessing data through a device like a mobile phone might not be. In any event, 77m's activity was not limited to on screen reading.

Ultimately, what deprived 77m's activity of the character of mere consultation was its sheer scale. Where a user, even a commercial one, wished to consult a database to learn something about a particular entry, they consulted the database. By contrast, 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. That was why what 77m did was extraction and not consultation. There might be a grey area between commercial consultation as described and wholesale activity of the kind carried out by 77m, but the scale of 77m's actions put them on the extraction side of the line.

Addresses from A1 Match and FAP: extraction by matching and verification of database contents

The other act alleged to infringe database right was the use the addresses from the A1 Match Licence and from the FAP. The first issue was whether 77m had committed an act restricted by database right. 77m had used the addresses provided under the A1 Match Licence and FAP to match them with an existing address which it already had in its Master Address List. It did this by copying the addresses provided by A1 Match/ FAP into a temporary computer memory. Since the A1 Match data consisted of addresses corresponding to INSPIRE IDs which 77m selected, the court surmised that an attempt was made to match virtually every A1 address. As such the number of addresses used represented a substantial part of the A1 Match data. The same applied to the FAP addresses. Although for each attempt at matching a given address, the address in the temporary memory was discarded afterwards, for a successful match 77m's Master Address File entry was now linked to an INSPIRE ID. This matching activity amounted to extraction. The court held that matching of millions of addresses obtained via the A1 Match Licence with 77m's address list amounted to extraction of a substantial part of the relevant database.

The second issue raised by 77m was the relationship between the A1 Match and FAP addresses acquired by 77m and OS's database rights in AddressBase.  77m had acquired the addresses via intermediaries, the A1 Match process and FAP from the Land Registry, not directly from OS. 77m argued that the geolocation information it used came from INSPIRE and was lawful.  The only thing 77m was using which derived from AddressBase was the address text itself which came from the PAF.

For all relevant purposes in this case the AddressBase was simply a copy of the NAG.  Database right in relation to AddressBase was therefore owned by GeoPlace and licensed to OS, with authority to license it on.  The critical point, however, made by OS was that the PAF addresses in the NAG had been verified. A significant part of the value of a PAF address appearing in the NAG (and therefore in AddressBase) was that it had been through a rigorous verification process.  This kind of considerable investment in verifying the contents of a database, undertaken by GeoPlace to maintain the NAG, was one of the purposes for which the database right was created, namely to ensure protection of any investment in obtaining, verifying or presenting the contents of a database. Given the high number of addresses extracted by 77m, this represented a substantial part of the contents of the NAG and thus was an infringement of database right.

Conclusion

In summary, 77m's claims for a declaration of non-infringement of OS's intellectual property rights and procuring a breach of contract failed, and OS's counterclaim for infringement of database right succeeded in part.  For that reason, the judge declared at that the winning parties in the litigation were the claimants on the counterclaim, OS and GeoPlace, even though 77m had achieved some success.

Comment

The decision is an important one for the many businesses that invest in databases or wish to re-use data published under public sector licences. It 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.

Most notably of all, infringement occurred here even although the data that was extracted did not ultimately find its way into77m’s commercial dataset: it was sufficient that the extraction led to the dataset being created. Extraction occurred through the activity of matching data, regardless of whether the extracted data was eventually discarded, and, unlike re-utilisation, did not necessarily involve making the data available to the public.

Careful consideration and drafting of permissions and restrictions on use of data is of paramount importance. Businesses deriving data from a source such as OS, or any other public sector or commercial database, in order to create their own database should ensure that the specific purpose for which they intend to re-use that data is covered in the licence, and bear in mind that, if it is not, or if it is exceeded, they may be liable for infringement of database right.

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

This article was first published in European Intellectual Property Review, EIPR (2020) Vol 42 (7) pp393-459