The 60-page judgment of the Business and Property division of the High Court in 77m Ltd v Ordnance Survey Ltd [2019] EWHC 3007 (Ch) isn’t the lightest of reads but is super-relevant to UK companies trading in ‘big data’. It gives guidance on database right claims and how to interpret multiple sets of website terms. I’ve summarised the key points below.

Background

The Claimant created a property database (called ‘Matrix’) which contained detailed geographical coordinates of residential and non-residential addresses in Great Britain, some 28 million records. It wanted to sell access to it.

The problem? A direct competitor, called AddressBase, which basically did the same thing. AddressBase was operated by the well-known Defendant, Ordnance Survey Limited (‘OS’).

Matrix was based on a range of different datasets, some freely accessible and some paid for, including datasets that were themselves partly derived from OS data but licenced to HM Land Registry.

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Creating Matrix involved using various ‘big data’ processing techniques to match different information held across different data sets, use code to identify inconsistent records, estimate missing records and cleanse errors, duplication and formatting issues. Data from HM Land Registry, derived from OS data, was central to this process.

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Image: Mika Baumeister, pexels.com

For its part, the Defendant owned ‘Topo’, apparently the most accurate and up-to-date geospatial maps of Great Britain, made available to the private sector on a commercial basis. It also maintained a number of other, less detailed databases available for free. AddressBase evolved from the first OS database to combine address data with geospatial coordinates.

Since the Defendant’s terms of use were not economical for the Claimant’s purposes, the Claimant had not agreed any access to AddressBase. In broad terms, the question for the Court was whether the Claimant had created Matrix without infringing the database rights of OS. The Claimant also alleged that when OS discovered that the Claimant was paying HM Land Registry for bulk address data, OS persuaded HM Land Registry to stop dealing with the Claimant, thereby procuring a breach of contract.

The Claimant brought a claim against OS seeking a declaration that it had not infringed any of OS’ rights by creating Matrix. The OS brought a counterclaim for infringement of copyright and database right. Subsequently, the Claimant was granted permission to include a further claim alleging commercial interference.

The law

EU law requires certain public authorities to maintain publicly available spatial datasets for the purposes of environmental policies (see the the INSPIRE Directive (Directive 2007/2/EC), as implemented in the UK via the INSPIRE Regulations 2009 (SI 2009/3157 as amended by SI 2012/1762). This is the legal basis of the publicly accessible records on HM Land Registry’s website, for example.

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On a related theme, database rights originate from the EU Database Directive 96/9/EC, which the UK implements via the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032).

As summarised in the judgment:

261. Article 7(1) of the Database Directive provides that database right subsists where “there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents”.

262. Database right is a negative right which prevents the “extraction and/or re-utilization” of the whole or a substantial part of a database.

263. The concepts of “extraction” and “re-utilization” are defined in Article 7(2).

i) “Extraction” means “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”: Article 7(2)(a).

ii) “Re-utilization” means “any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission”: Article 7(2)(b).

There are several caveats to this right, discussed in the following case law:

  • Football Dataco Ltd v Sportradar GmbH [2013] EWCA Civ 27 at § 24 – database right is not simply copyright protection of data. It protects the collection of data, not the data itself;
  • British Horseracing Board Ltd v William Hill Organisation Ltd (C-203/02) at §§ 54- 55 – where a database creator makes its contents public, consultation of the database does not amount to infringement of database right;
  • Directmedia Publishing GmbH v Albert Ludwigs-Universität Freiburg (C-304/07) at §§ 36 to 40 – the difference between consultation and ‘extraction’ lies in the transfer of all or part of the contents of a database into another medium, irrespective of how that is done or differences between the original contents and the arrangement of the transferred data;

  • Innoweb BV v Wegener ICT Media C-202/12 – where a defendant provided a real time meta search engine, it was not merely consulting the third party databases but was providing access to them via a route which was not indended by their owners, which amounted to ‘re-utilisation’ contrary to the Database Directive.

There are various defences to infringement of a database right as specified in Schedule 1, paragraph 3 of the Databases Regulations 1997, relating to extraction or re-utilisation of the contents of databases that are required by statute to be open to public inspection or the contents of statutory registers. There have been no reported cases on these defences until 77m, which provides fresh guidance on their operation.

The trial

Not all of the extensive evidence put before Mr Justice Birss appeared to be reliable:

53. …I do not trust uncorroborated evidence from Mr Highland [co-founder of 77m]. Two examples are sufficient to show why. His statements before trial about the reasons why there was a shift in the geocoded point in Matrix were deliberately misleading. Also Mr Highland deleted or allowed to be deleted the contents of a relevant laptop when he knew relevant documents were to be preserved.

Further complications arose because the Claimant wished to keep its trade secrets, such as innovative algorithms, from a direct competitor, OS.

An important part of the Claimant’s data processing involved using data sources that had been derived from AddressBase in order to match HM Land Registry data with specific property descriptions. The Claimant’s position was that it was merely reading that data rather than infringing any of OS’ rights.

Breaches of licence

A key issue was whether the Claimant had breached the terms of various licences it agreed to when downloading or otherwise obtaining the datasets that were fed into Matrix. While the OS derived data which the Claimant obtained from HM Land Registry was licenced for its internal use, that did not include creating a product to supply to others.

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The Court found that there was a widely held belief in the geospatial community that one party cannot use the other party’s data to create a new product that is sold on without paying royalties (see § 152).

Despite this belief, HM Land Registry’s terms of use did not prevent the Claimant from developing Matrix internally and selling it on. They only restricted the Claimant from passing on the underlying data (or ‘polygons’) and associated geometry to third parties.

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Image: Kevin Ku, unsplash.com

However, the Claimant exceeded a separate licence agreement by matching HM Land Registry datasets to addressable records without fully informing HM Land Registry of their intended use for the data (§ 203 and 205).

OS alleged that the Claimant had used an automated ‘scraping’ process to obtain millions of HM Land Registry records via the public-facing ‘Find a Property’ service. The Claimant denied this and claimed to be using contractors in Pakistan to manually download data from the service. The Court found, on balance, that the Claimant had scraped the data (comprising 3.5 million addresses). The issue was whether this was permitted within the terms of use or not.

The Court noted the absence of authority on how to approach terms of use where different parts of the same webpage contain links to different sets of terms and conditions which are given different prominence as they appear to users. It commented:

212. …it seems to me that the way a question like this should be approached must be to consider objectively the point of view of a reasonable user coming to the website to use it. That is because these licence terms are not open for negotiation. They are standard terms which the operator of the website is putting forward to all users.

Here, scraping by automated bots was prohibited in one set of terms but not the other. As the prohibition on scraping was more prominent, it was more likely to be seen by reasonable users. Therefore the Claimant had obtained the records in breach of the terms.

OS also accused the Claimant of using its geospatial data on Scotland in breach of the terms of use on the Registers of Scotland website. On the facts, the Court found that the Claimant’s use of that data was a prohibitied breach of the terms of use.

In relation to OS data that the Claimant obtained from Lichfield District Council under the government’s open data initiative, the Court held that this was made available lawfully by OS under the Open Government Licence which permitted the Claimant to process that data in the way that it did (§ 258).

Breaches of database rights

The Court considered various forms of possible infringement by the Claimant, contrary to Databases Directive and 1997 Regulations.

It held that the Claimant had temporarily extracted the contents of the Registers of Scotland’s database (which was derived from OS data), rather than merely consulting the data:

272. …Extracting contents from one database (A) which are themselves extracted from another database (B) is an act of extraction of the contents of database B as well as the contents of A… To be an infringement of database right in database B, it would not be enough for those extracted to be a substantial part of database A, they must be a substantial part of database B.

The scale of the Claimant’s access to and transfer of data from the database was such that it had appropriated a substantial amount of its contents.

Similarly, the Claimant’s use of the HM Land Registry ‘Find a Property’ service and its address data amounted to extraction as it involved matching millions of addresses. The Court accepted that this data was in part derived from an OS’ database which the OS had invested in significantly and verified over many years. The purpose of the Database Directive was to protect such investment through the database right (§ 293).

As for the defences available under the Databases Regulations 1997, the Court commented:

311. …Once information is put on a statutory register or, pursuant to a statute, made publicly open, the public as a whole, including commercial organisations as much as private persons, ought to be free to use that information at least to some extent (defined in the defences) without fear of trespassing on database rights, always assuming the member of the public has acted with the authority of the appropriate person.

The ‘appropriate person’ is not the person who holds the database right but the person who is required to make the records publicly available or to maintain a publicly accessible register (here, the HM Land Registry and the Registers of Scotland).

While the Claimant had downloaded contents from the HM Land Registry and Registers of Scotland’s databases with authorisation, the Claimant had processed and matched the data in ways that were not authorised and in breach of licence. The data scraped from the Find a Property webpage was also unauthorised.

The Claimant was unable to rely on the defences in the 1997 Regulations because although authorised initially, the Claimant’s data processing was not authorised for the same reasons why the Claimant was in breach of various licences.

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As for the Claimant’s allegations that OS had encouraged HM Land Registry to breach a contract with the Claimant,  the Court found on the facts that by the time that OS was on notice of the Claimant’s agreement with HM Land Registry, OS did not attempt to interfere with it and HM Land Registry had already stopped providing the Claimant with data in breach of contract.

Comment

This case is an interesting example of how datasets (even freely available ones) can nevertheless come with the contractual baggage of third-party rights that must be respected. To avoid costly disputes over database rights, the builders of new database products should take care to avoid potential infringement of third party rights in the underlying datasets they have obtained, used or relied on.

Business owners should take legal advice before signing up to the terms of use for databases that are used to make their products or services. Clear records should be kept of pre-contractual discussions which may reflect the parties’ understanding or agreement on how the data should and shouldn’t be used.

In many cases, data providers will want to protect their information to prevent re-sale of the data. Restrictions may be buried in the small print or dispersed in website terms so that even if the datasets are publicly accessible, a third party may have an infringement claim where such terms are breached.

Data providers should ensure that their terms of use are prominent, clearly worded, consistent with other visible terms and reflect standard industry practice. In particular, permitted usage/s of data should be well-defined so that disputes can be avoided or minimised. Mediation or arbitration clauses may also help to resolve disputes in a cost-efficient manner that avoids the steep costs of High Court litigation.

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Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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