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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> 77m Ltd v Ordnance Survey Ltd [2019] EWHC 3007 (Ch) (08 November 2019) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2019/3007.html Cite as: [2020] RPC 7, [2019] EWHC 3007 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
The Rolls Building 7 Rolls Buildings London, EC4A 1NL |
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B e f o r e :
____________________
 77m LIMITED |
Claimant |
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| - and - |
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| ORDNANCE SURVEY LIMITED |
Defendant |
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And Between: |
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| (1) ORDNANCE SURVEY LIMITED (2) GEOPLACE LLP |
Part 20 Claimants |
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| - and - |
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| (1) 77m LIMITED (2) THE KEEPER OF PUBLIC RECORDS |
Part 20 Defendants |
____________________
77m Limited
Lindsay Lane QC and Jessie Bowhill (instructed by Fieldfisher) for Ordnance Survey Limited and Geoplace LLP
The Keeper of Public Records did not appear and was not represented
Hearing dates: 17th - 19th, 22nd - 26th July 2019
____________________
Crown Copyright ©
Mr Justice Birss :
Topic Paragraphs Introduction 1 Background 8 The witnesses 53 What happened 69 How was Matrix created? 99 The issues 129 The contracts 138 INSPIRE Download Terms 139 A1 Match Licence 176 FAP licences and scraping 208 RoS Land Values Licence 231 Authority 251 Infringement of database right 259 Defences 296 Procuring breach of contract 328 Conclusion 342 Confidential annex [not included] 344
Introduction
77m and Ordnance Survey (OS). 77m has created a dataset called Matrix to which it wishes to sell access. Matrix consists essentially of an up-to-date, detailed and accurate list of the geospatial coordinates of all the residential and non-residential addresses in Great Britain. It contains about 28 million records. As a product Matrix would directly compete with an existing OS product called AddressBase. AddressBase is a similarly up-to-date, detailed and accurate list linking all the addresses in Great Britain to geospatial coordinates. There is more to both products than that but none of it matters at this stage.
77m created Matrix by accessing, combining and processing data from a wide range of datasets which were either publicly available for free or which 77m paid to access. Some of those datasets include data which derives at least to some extent from OS. However 77m did not contract with OS for access to AddressBase. The terms on which OS would allow access to its data in a manner which would permit a third party like 77m to produce something like Matrix, would not make it economic to compete with OS in the manner 77m wishes to do. The question is whether 77m has succeeded in its aim of creating the Matrix dataset without infringing any intellectual property rights held by OS. 77m contends that it has, and OS contends that it has not.
77m accessed over 50 million records from the various sources it used. At least 18 datasets from different sources were accessed. Some details of what was done at 77m are trade secrets. One of the sources used to create Matrix was data from Her Majesty's Land Registry (HMLR). 77m entered into various contracts with HMLR to receive data from or have access to HMLR databases. One of the issues relates to the terms of those contracts. Another source of data was Registers of Scotland (RoS). Among other things RoS carries out tasks in Scotland similar to the work of HMLR in England and Wales. Another source was data made public by Lichfield District Council under a Governmental open data initiative. There are issues about the scope of the terms on which the RoS and Lichfield data was obtained.
77m used included:
i) the Post Office Address File (the PAF), which is a commercial dataset from the Royal Mail which 77m paid for;
ii) CodePoint Open, which is a freely available open dataset from OS providing a representative geospatial location for each postcode in Great Britain;
iii) VectorMap District and OpenMap Local, which are essentially freely available, generalised, maps of Great Britain (from OS);
iv) Data from the Valuation Office Agency (VOA) which 77m licensed. The VOA is concerned with the rateable value of property and produces data linking addresses to rateable value.
v) Data from numerous other freely available sources such as a list of sporting facilities in England produced by Sport England and a list of churches produced by the Church of England.
77m had access to all this data is not confidential whereas aspects of what 77m did with some of it is.
77M that OS committed the tort of procuring a breach of contract. This is said to have happened when OS found out what HMLR and 77m were doing. The allegation is that OS procured or persuaded HMLR to stop dealing with 77m in the same way as it had been before. 77M says this amounted to procuring HMLR to breach a contract it had with 77m, of which, by then, OS was on notice.
77m and OS. They are the Keeper of Public Records and GeoPlace. The Keeper is responsible for managing Crown copyright and database rights, including by granting delegations of authorities to public bodies to license protected material. This role was previously held by the Controller of HMSO until July 2017. The Keeper did not participate in these proceedings. The position of GeoPlace is dealt with below.
Background
Some concepts
survey either by surveyors physically on the ground or by remote sensing such as by satellite or aerial photography. Today this data is or will be digitised. Another way would be to carry out data processing on existing datasets. That is what happened in this case.
Ordnance Survey Act 1841.
Ordnance Survey transferred its functions to the defendant company, Ordnance Survey Limited, a private company wholly owned by the Secretary of State for Business, Energy & Industrial Strategy (BEIS). I use the term OS to refer compendiously to the company or the trading fund. Since OS became a company, any intellectual property created by OS no longer vests automatically in the Crown. OS and the Controller of HMSO therefore entered into a Crown Rights Agreement (the "CRA") on 31 March 2015. The construction of the CRA is another issue in dispute. For present purposes it suffices to say that certain intellectual property created by OS before 1 April 2015 is owned by the Crown but licensed to OS, and certain new material is assigned to the Crown and licensed to OS. After taking over from the Controller in July 2017, the Keeper entered into a second CRA with OS on 24 August 2017 on the same terms as before.
OS databases and licensing
The OS Topo database
survey. In other words Topo is a map of Great Britain. It is the most accurate, detailed and up to date map of Great Britain available. OS makes Topo available to the private sector on commercial terms. It is not available outside the public sector for free.
More generalised OS databases
Geolocated address products from OS
GeoPlace
HMLR, INSPIRE and RoS
Ordnance Survey map (paragraph 5(a) of the Land Registration Rules 2003). The Title Plan consists of a map of the locality in which the property is situated with the boundaries of the relevant property marked.
Valuation data
77m.
Lichfield
Witnesses
77m called a single fact witness, Mr Highland. Mr Highland is the co-founder of 77m with responsibility for the management and day-to-day operations of the business. Mr Highland gave evidence on the development and commercialisation of Matrix, the licensing of the datasets in issue, and the communications with OS and HMLR in this regard. I do not trust uncorroborated evidence from Mr Highland. 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.
77m, HMLR and RoS during the relevant period. His oral evidence was defensive. I would be wary of placing weight on any uncorroborated testimony contrary to 77m's case.
77m during the relevant period, first as a Product Manager and later as a Senior Product Manager. She explained how HMLR responded to various data requests made by 77m, including in relation to the INSPIRE Polygons and the property descriptions in the A1 Match data. Her evidence also addressed the relationship between HMLR and OS and particularly the discussions with Mr Jagot concerning the data supplies made to 77m.
77m from September 2013 until November 2014. She gave evidence on the negotiation of the A1 Match Licence and the supply of the A1 Match data.
77m but ultimately did not do so.
77m called a single expert witness, Dr Benjamin Halstead. Dr Halstead is the Chief Technical Officer of 77m. He joined the company in April 2017, replacing Dr Kieron Brown. Dr Halstead examined the source code of Matrix and explained how 77m used the INSPIRE Polygons, the A1 Match Data, the FAP service and the RoS Land Value data in the development of the product. He also considered the relationship between AddressBase and various datasets provided by HMLR, RoS and Royal Mail.
77m in the context of these proceedings and the disclosure material. Mr Simmons saw a brief demonstration of Matrix in October 2016 but did not have access to the Matrix source code.
77m but his evidence was not relied on at trial by OS.
What happened
77m is a start-up company founded by Philip Highland and Graham Allison in 2010. Mr Highland has a background in data analysis, particularly in the insurance industry and had been thinking about bringing a geospatial product to the market since the mid 1990s. Two spurs to his thinking were the release of a complete dataset of addresses and rateable values by the VOA in 1995 and in 1999 the availability of high quality mapping data by a company called Getmapping. According to Mr Highland a drawback of the data produced by the VOA at that time was the need for cleansing.
Ordnance Survey reseller. Mr Allison remains at Streetwise. He donated all the time he could spare to 77m. A programmer called Mr Mudassir was seconded from Streetwise to 77m as a contractor in late 2010.
77m bought access to the PAF from Royal Mail. There is a licence dated 2014. Although it is not clear to me whether that was the first time 77m had access to the PAF, nothing turns on that. 77m has had monthly updates for the PAF ever since.
77m entered into an agreement to obtain non-domestic rating data (with weekly updates) from the VOA. I have not had my attention drawn to the terms of that licence but nothing turns on them. This data amounted to about 2 million records.
77m also obtained the open OS geospatial datasets OML and VMD as well as the open address dataset CodePoint Open. For each of these datasets as I understand it 77m obtains or obtained the relevant updates. Exactly when any of this took place is not clear but does not matter.
77m (Mr Highland) and HMLR seems to have been in 2011 (with Ms Nicholson) but the first important step took place in April 2012 when Mr Highland and staff at HMLR started discussing the purchase of large numbers of INSPIRE polygons by 77m. Mr Highland met Ms Nicholson in July 2012. The staff in touch were Mr Highland and Mr Allison of 77m and were Ms Nicholson and Victoria Abbott, the account manager, for HMLR. Although the detail of much of the discussions is not relevant, it is notable that 77m, and in particular Mr Highland, were in close and regular contact with HMLR from this period until 2015.
77m entered into a licence with the RoS whereby RoS would provide land value data relating to property in Scotland. The data was called historic "Land Values plus House Type". 77m acquired about 1.3 million such records from RoS. The meaning and scope of this licence is disputed and will be addressed below. There is also an issue about what use 77m made of this data. 77m contended that no relevant use was made of the data obtained under this 2012 licence.
77m whereby the entire INSPIRE polygon dataset would be released to 77m for a one off payment of £60,000. At the last minute in late November 2012 HMLR told 77M they could not go ahead. The reason was that OS considered it had rights in that data and did not accept HMLR could license it without reference to OS.
77m and HMLR continued.
77m in 2015 as a result of a Freedom of Information (FOI) request shed some light on the OS/HMLR negotiations. In any event HMLR eventually promulgated a set of licence terms under which the INSPIRE polygons would be made available to the public for downloading for free. These can be called the "INSPIRE Download Terms". The meaning of these terms is one of the central issues in the case.
77m downloaded complete copies of the entire INSPIRE polygon dataset. This data consists only of the geospatial data defining the various polygons together with the relevant INSPIRE ID for that polygon. There is no address data and no description of the property in this data. Since then 77m has continued to download INSPIRE polygons when they are available, at least until December 2016. The use of the INSPIRE polygons is subject to the INSPIRE Download Terms.
77m from Ms Abbott.
77m and OS about a possible licence from OS relating to the INSPIRE polygons (the INSPIRE Download Terms refer to contacting OS in certain circumstances).
The A1 Match data
77m. This led to a contract called the A1 Match Licence which was entered into between 77m and HMLR on 14th February 2014. Various aspects of this are disputed, but what is not in dispute is that under the contract 77m would provide nearly 1 million INSPIRE IDs to HMLR (the exact number in the contract was 910,000) and in return HMLR would provide the A1 property descriptions from the Register of Title for each of those INSPIRE IDs. The price for this service was £2,500 plus VAT. The A1 property description allows one to find out what sort of property the ID refers to (e.g. an electricity sub-station) but it also gives the address for the property. The batches of A1 property descriptions were put together into response files by HMLR and provided to 77m.
77m did that too. Its pleaded case is this started in January 2014 and ran until January 2017. I will come back to this below.
77m in January 2014. He left in 2017.
77m and 77m had paid about £20,000 for the service. No further written contracts were signed apart from the original one dated 14th February 2014.
77m this way. The discrepancy between 8 million and 12.8 million is not explained but there is no suggestion that 77m obtained the balance in any other way. All 12.8 million records were in the response files from HMLR. Nothing therefore turns on the difference between 8 million and 12.8 million. However shortly before trial (28th June 2019) it then emerged via Dr Halstead that 77m actually has in its possession 16.3 million INSPIRE IDs linked to A1 property descriptions. The source of the further 3.5 million is not at all clear and is disputed.
77m and OS entered into two contracts – a Framework Partners Contract and a Land Registry Polygons Contract. As I understand it, in the end nothing turns on these contracts.
77m downloaded those records (about 1.5 million). Although there was an issue about the terms of the RoS INSPIRE licence, it was dropped by OS at trial. It is accepted that whatever use 77m made of that data was lawful.
77m made a seventh request to HMLR for A1 property descriptions.
77m. He had heard from Mr Highland that 77m had an agreement with HMLR about this. HMLR never supplied any further A1 property descriptions to 77m after that. 77m contends that was a breach of contract by HMLR and that the breach was procured by OS.
77m's use of the FAP service. 77m's case is that it did use the FAP service to match INSPIRE IDs to addresses for about 480,000 address records. Its case is that this was done entirely manually by employees or contractors. There is clear evidence of contracts with staff working in Pakistan. Extracting 480,000 addresses manually using contractors in Pakistan is credible, not least because there are invoices to substantiate that case. However that does not explain the recently discovered 3.5 million extra A1 property descriptions. Those 3.5 million did not come from the automated A1 match service provided by HMLR therefore, contends OS, they must have come from the FAP service and that can only be explained by the use of an automated tool to access records via the FAP website, i.e. a process called "scraping". Scraping would be outside what OS contends are the applicable terms for the FAP service.
77m launched Matrix, offering licences to customers. At about the same time 77m's then solicitors Gordon Dadds wrote to OS. The thrust of the letter was to assert 77m's case that it had acted lawfully, that OS was seeking to prevent the completion of the Matrix product, and that OS was abusing its dominant position contrary to competition law.
77m downloaded the open datasets posted by Lichfield District Council in April 2016. There were about 52,000 records.
77m against OS on 13th September 2016. The action was in the Intellectual Property Enterprise Court. The main relief sought was declarations that 77m had acted lawfully and Matrix did not infringe any relevant OS rights. OS served a Defence and Counterclaim, claiming infringement of copyright and database right. By later amendments GeoPlace and the Keeper were added as parties and the claim for procuring breach of contract was included. The order permitting the amendment to bring a claim for procuring breach only allowed that claim to be brought based on procuring after September (or, in practice, August) 2016 (which was when OS obtained the annexes to the Particulars of Claim) on the basis that the claim before that date was unarguable. A belated attempt in the middle of trial to amend the procuring plea to cover a much earlier period was dropped.
77m supplied a version of Matrix to Hastings Insurance. This version included street addresses and building types but according to 77m the data provided did not include INSPIRE polygons. There is no reason to doubt that latter point. In December 2016 a similar version of Matrix was supplied to a different customer Constable Homes. The customer then downloaded the INSPIRE polygons themselves and these were integrated into the version of Matrix supplied to Constable.
77m says due at least in part to the pressures of this litigation and uncertainty caused by OS.
How was Matrix created?
77m has never been entirely frank about how Matrix was created. There are some grounds for sympathy in that the details are complex and highly technical, individuals have left, steps have not been well documented, and I do believe Mr Highland, who is not a computer programmer, genuinely does not know every minute detail of the entire story because much of the detailed work was done by others. Another problem is that 77m believes key parts of its method are secret and clever ways of effectively getting around restrictions OS seeks to place on access to the more accurate information it holds. OS is the last organisation 77m wishes to have access to some of its ideas. Also although some of the secrets are technically complex, the detail of them does not matter and so they can be protected without too much trouble. The practical problems are caused by some relatively simple ideas, which 77m says are secret, but which could be easily given away. Insufficient thought was given to this at the outset and it significantly complicated the materials in this case and the conduct of the trial. Overall however, despite making the various allowances above, the cause of most of the difficulty has been a lack of candour by 77m and, in at least some cases, deliberate falsehood (e.g. moving the geocoded points – see below).
77m. Presented in this manner the steps described are intended to focus on matters relevant to this dispute rather than represent a comprehensive description of the whole process. The tasks were not necessarily undertaken in this order, and many of the steps were repeated as new or updated data became available. I think 77m does not agree with the way this description characterises certain sets of data. 77m says the data was grouped in different ways. However despite counsel's best effort in closing, I was not left with a clear explanation of what is materially wrong with this description. Setting it out this way is intended to aid comprehension and I believe it is a fair approach to understanding Matrix.
i) Process address data
ii) Process geospatial data
iii) Link address data and geospatial data together
iv) Generate more data associated with geolocated addresses
(i) Process address data
77m has a file called the Master Address List. This was made by starting from the PAF. Then those addresses were merged with addresses from other freely available lists of addresses. Examples of other sources of addresses include the VOA, the list of sporting facilities from Sport England and the Church of England's list of churches.
77m's own standards. This exercise included making edits to data from the PAF. To achieve this 77m created its own proprietary address matching software. 77m also used address matching to obtain further information about the addresses in its Master Address List by matching them against datasets e.g. which recorded building type or listed building status. The cleansing/verification process is an ongoing one so that when new data is made available, it is verified against existing data.
(ii) Process geospatial data
77m had a number of sources of geospatial data. The most important geospatial data was the INSPIRE polygons. Taken as a whole these polygons are effectively a map of England and Wales by freehold boundary. Although freehold boundaries do not necessarily always correspond to physical features, in practice they almost always do. However on its own, of course, the set of INSPIRE polygons does not tell you what the addresses are nor does it say anything about what is actually situated on the land (land use etc).
77m took a number of steps to process its geospatial data.
77m categorised all the INSPIRE polygons by what they represent. The polygons were put into three classes. One class was so called "garbage" polygons. These had an area of less than 3m2. In effect they were no use to 77m. The remaining polygons were divided into "land only" polygons which had no buildings on them and polygons which intersect with a building, which were classed as "operational". It seems clear, although nothing turns on it, that further categorisation work was done as well, e.g. to identify and eliminate polygons representing features which are under the ground, at least in London, and categorising different sorts of land use.
77m took was to create a good quality set of building polygons. The way this was done is confidential and is explained in the confidential annex.
77m was to derive a set of five items of data associated with each INSPIRE polygon. The first two items of data are the centroid and the area of the polygon. In order to do this one needs to perform a calculation which uses all the X-Y coordinates which define the polygon geometry. These results were stored against the INSPIRE polygon.
(iii) Link address data and geospatial data together
77m now had three sets of processed data: a good quality Master Address List with some further information but no spatial or coordinate data linked to the addresses; a set of spatially derived information indexed to the INSPIRE polygons; and a set of building polygons with further information attached including some related to relevant INSPIRE polygons. These are "processed" data because 77m has done extensive processing to generate these datasets in this form.
77m did this using a technique involving "anchor points" and "streetwalking". Essentially this involves two steps. The first step is to identify a set of what 77m calls "anchor points". 77m uses a scoring system to record the quality of the geolocation for a given address. An anchor point is an address in the Master Address List for which 77m has an accurate geolocation, i.e. a sufficiently high score. Given those anchor points 77m can then carry out the second step, referred to as streetwalking. This second step used interpolation and inference to work out the remaining locations which are not anchor points.
Anchor points
77m emphasised that many sources were used to determine accurate geolocations of an address in the Master Address List which did not involve the A1 property descriptions. I accept that. One example is Codepoint Open. This was used to assign a default location to the address by postcode. For reasons explained above, that location is not necessarily very accurate.
77m had acquired was a list of A1 property descriptions indexed by INSPIRE ID. So if an address in the Master Address List can be found to match an address in an A1 property description, that gives you the INSPIRE ID corresponding to the address in the Master Address List and that in turn allows you to link the address in the Master Address List with the five items of good quality geospatial data referred to above.
77m a way of creating anchor points by address matching. It is plain that today the reason many millions of addresses in the Master Address List have accurate geolocations is as a result of this process of matching the address in the Master Address List with the address in the A1 property description.
77m emphasised was that when a match was identified between the two addresses - in the Master Address and in the A1 property description, the address in the Master Address List did not change. In other words nothing from the A1 property description itself was taken into the Master Address List address. The A1 property description address was only used to find a match and then link the INSPIRE ID with the Master Address List. The reason 77m emphasised this was that the address in the Master Address List had been derived from the PAF – which was fully licensed from Royal Mail – and cleansed by processing by 77m in a manner free of any rights of OS. OS had a claim, which I will address below, to rights in the addresses in the A1 property descriptions because they were said to have derived from AddressBase or its predecessors and ultimately from the NAG. 77m's case is that even if OS did have such rights, what was done was merely reading the information and did not infringe any rights of OS even if it was outside the terms on which HMLR had licensed the A1 property descriptions.
Streetwalking
77m's streetwalking algorithms are secret but irrelevant. It is common ground that there are innovative techniques here which are not publicly known in the industry.
Anchor points and streetwalking together
77m was never clear and inconsistent evidence was given about it. Also unclear was the minimum number of anchor points necessary to allow the dataset to be completed accurately by streetwalking.
77m hold, indexed to INSPIRE IDs is about 16 million. I am satisfied that many millions, well over 50%, of the A1 property descriptions correspond to an anchor point. Mr Simmons' view was that 11.6 million anchor points were identified based on A1 property descriptions obtained under the A1 match licence (i.e. not via FAP). I accept that evidence.
Anchor points in Scotland
77m assigned locations to addresses in the Master Address List by address matching with the Land Values data and then using coordinates provided in the Land Values data to assign a location. It then used those coordinates to search for the nearest RoS seed point and then replaced the coordinates from the land values data with the coordinates of the seed point. About 600,000 anchor points were created this way.
(iv) Generate more data associated with geolocated addresses
Conclusion on the Matrix dataset
The shift in the geocoded point
77m took was to introduce a very small, random, shift in the coordinates of the geocoded point for each address. The true purpose of this shift was to ensure that the geolocation coordinates for a given address in Matrix were not the same as the geolocation coordinates for the same address in OS's AddressBase dataset. 77m feared that if its coordinates were the same as the ones in AddressBase, OS would assume, wrongly, that AddressBase or its predecessor(s) had been stolen by 77m. In fact the coordinates were not copied (77m did not have access to AddressBase), rather they had been derived in the manner described above. However 77m thought OS would regard the close similarity of millions of coordinates as evidence of copying. As a matter of fact, as I understand it, without the random shift the coordinates would indeed be very similar or identical to the ones in AddressBase, for a very large number of addresses. OS did not suggest this indicated direct copying of coordinates. In my judgment the similarity is due to the way 77m derived the coordinates.
77m's random shift would have that effect but it was not the true reason why it was done. The true reason was the one described above. It was not mentioned until he was cross-examined at trial. The reason was because Mr Highland did not trust OS but that mistrust led him to give evidence deliberately which gave a false impression.
The issues
77m has infringed OS database rights in three respects:
i) Infringement of the database right in the Topo database (also called MAIA in the pleading) by the use of INSPIRE polygons;
ii) Infringement of the database right in the Addressing databases (that is AddressBase and its predecessors AddressPoint, AddressLayer and AddressLayer2) by:
a) the use of centroids from the RoS Land Values dataset; and
b) the use of addresses from HMLR and Lichfield D.C.
77m and HMLR (the INSPIRE Download Terms, the A1 Match Licence and the FAP terms) or RoS (the RoS Land Values Licence). The argument about the meaning of the INSPIRE Download Terms is important because those terms represent the licence given to 77m relating to the INSPIRE polygons, which are at the heart of what 77m did. The argument about the terms of the A1 Match Licence is important because those terms represent the licence given to 77m relating to most (but not all) of the A1 property descriptions held by 77m. The argument about the FAP terms relates to the issue of scraping and the outcome determines the relevant licence terms (if any) governing several million further A1 property descriptions. The argument about the RoS Land Values licence also involves looking a bit more closely at what 77m actually did with the relevant data.
77m's actions fell within their terms or not. Even if the actions are within the licences there are also issues about alleged limits on the power of the bodies granting these licences (HMLR, Lichfield DC and RoS). OS contended that if the licences were so broad as to render lawful what 77m did then HMLR and RoS had no power to grant them and therefore they were not effective in law to grant such a licence.
77m has infringed OS's database rights. At trial 77m took a further point, asking whether the acts which were carried out needed a licence at all. To deal with that one needs to identify exactly what rights OS has and then examine the scope of the definition of infringement in database rights law and the scope of various defences. OS did not accept that these points (or some of them) were open to 77m and I need to consider that.
77m also maintained separate defences of estoppel by representation.
77m submitted that OS had not established that any geocodes from Lichfield DC had been transferred into Matrix. I agree but the issue is about addresses, not geocodes.
Construction of the various licences
The INSPIRE Download Terms
"INSPIRE Index Polygons is an open source dataset, developed to comply with the INSPIRE Directive ([hyperlink ref]). It contains the locations of freehold registered property in England and Wales and a sub-set of our Index Polygons for all freehold land and property. "
"Use a Land Registry-INSPIRE ID with our Find-a-Property service ([hyperlink ref)] to get the title registration and plan for each polygon."
"Your use of the INSPIRE Index Polygons service is governed by conditions.
The INSPIRE Index Polygons and attributes provided in this service are available for use and reuse under the Open Government Licence (OGL) ([hyperlink ref]). This licence enables public bodies to make their data available free of charge for reuse.
Use under the OGL is free. If you fail to comply with any of the conditions of the OGL then the rights granted to you under the licence will automatically end.
Under the OGL when reusing data you must acknowledge the source of the data and include an attribution statement. You must:
1. Display the following statement 'This information is subject to Crown copyright and is reproduced with the permission of the land registry.'2. In addition when reusing the polygons (including the associated geometry, namely x,y coordinates) display the following3. Where possible you must provide a link to these conditions.
Under the OGL, Land Registry permits you to use the data for commercial or non-commercial purposes. However, as the licence says, OGL does not cover the use of third party rights which we are not authorised to license. Land Registry uses
1. use the polygons (including the associated geometry, namely x,y co-ordinates) for a purpose other than personal, non-commercial use or commercial or non-commercial use within your organisation; or2. sub-license, distribute, sell or make available the polygons (including the associated geometry, namely x,y co-ordinates) to third parties.
For
Ordnance Survey in general rather than any specific licence conditions. The INSPIRE Download Terms document has a short section after these "Conditions of use" which provides some further information, none of which has a bearing on the issues to be decided.
Ordnance Survey. It is not controversial that they define a set of acts for which the INSPIRE Download Terms provide that no licence is being given and so, if the user wishes to undertake any of them, they need to contact Ordnance Survey. The debate is about the scope of those expressly unlicensed acts.
Relevant factual matrix
77m had admitted this on the pleadings but in my judgment the admission (paragraph 28.1 of the Reply and Defence to Counterclaim) is qualified in a manner which does not assist OS.
Ordnance Survey. The argument is therefore that armed with this knowledge one can construe the exceptions in the INSPIRE Download Terms to mean that those sorts of activities are excluded.
77m that the knowledge was confined to a narrow group of OS partners. I accept Mr Cutler's evidence that there is a widely held belief in those working in the geospatial data industry along the lines he described. However I am far from convinced that sheds useful light on the interpretation of the INSPIRE Download Terms. First, those terms do not use the expression "internal business use". Second, the generally held understanding in the industry means that a person would not be surprised to read a contract which contained a provision with a meaning which fitted with their understanding. However, equally well, if they saw terms which appeared to make a different provision, there is no evidence their understanding was so strong that it would displace that different meaning. Moreover 77m is right to make the point that such a person might well conclude that the INSPIRE Download Terms are drafted the way they are in order to comply with the Government's INSPIRE obligations, in which case the general understanding would not be relevant.
77m in particular was well aware of the meaning of "internal business use". That is true (and Mr Highland accepted Mr Cutler's evidence). However since this is a contract on standard terms I do not accept that is relevant to its construction.
77m also relied on a number of factors said to be part of the factual matrix -such as the existence of other possible licences of government data (not the OGL) which could have been used. I was not persuaded any of that helped either.
The rival constructions
(a) 'Information' means information protected by copyright or database right (for example, literary and artistic works, content, data and source code) offered for use under the terms of the OGL.
(b) 'Information Provider' means the person or organisation providing the Information under this licence. Accordingly, in the Download Terms, the Information Provider was HMLR.
(c) 'Use' means doing any act which is restricted by copyright or database right, whether in the original medium or in any other medium, and includes without limitation, distributing, copying, adapting, modifying as may be technically necessary to use it in a different mode or format.
77m's case is that it would be seen as a specific and therefore limited exception or carve out from the general permission to use the data. The terms do not expressly say anything about prohibiting the use of data derived from the polygons in a product or service. Instead the words focus on preventing use of the polygons outside the organisation and making available the polygons themselves (included associated geometry). That is consistent with a prohibition on resale of the polygons but says nothing about sale of a product or service based on the polygons but which does not include them. The reference to "commercial or non-commercial use within your organisation" is effectively tautologous but would be understood as emphasising that internal use is not restricted even if it is commercial. So 77m contends that while it obviously did use the INSPIRE polygons for commercial purposes, its use of them was purely internal and it did not and does not supply the polygons to third parties. It says that its position is that the licence "means what it says".
77m fall within that term. It matters because of course 77m does (or would) supply that data.
i) if the user needs to use the polygons (including the associated geometry, namely x,y co-ordinates) "for a purpose other than personal, non-commercial use" ("Condition 1").
ii) if the user needs to use the polygons (including the associated geometry, namely x,y co-ordinates) "for a purpose other than… commercial or non-commercial use within your organisation" ("Condition 2").
iii) if the user needs to sub-license, distribute, sell or make available the polygons (including the associated geometry, namely x,y co-ordinates) to third parties ("Condition 3").
77m's construction ignores this aspect of the way the clause is written.
77m that it is relevant to see the context as one in which the INSPIRE polygons are being made available for use and that this clause is an exception. I do not believe OS's points about consistency with the terms as a whole or business common sense are significant. On both constructions the clause fits into the INSPIRE Download Terms as a whole and makes business sense.
77m's approach gives no meaning to the idea of purpose. The clause provides that no further OS licence is needed if you use the polygons for "a purpose" which is personal or non-commercial. It also provides that no further OS licence is needed if you use the polygons for "a purpose" which is "commercial or non-commercial use within your organisation". If that is the purpose for which you use the polygons then no further OS licence is needed. It may not be the purpose for which the user uses other things, but if that is all the polygons are used for then that use is licensed. Otherwise the clause has no meaning.
77m has used the INSPIRE polygons internally to create Matrix. I find that in doing this 77m was operating within the INSPIRE Download Terms.
77m's case is that it does not and does not intend to provide INSPIRE polygons to customers of Matrix. However it does wish to provide the five items of data associated with an INSPIRE polygon. The question is whether these are within the scope of the associated geometry. If they are then 77m is not licensed to provide that data to customers.
77m pointed out that when polygons are provided, the manner in which is done is by providing a series of x,y co-ordinates which specify the vertices of the polygon and therefore define the polygon itself. I believe that is what a reasonable objective person knowing the relevant factual matrix would understand the clause to be referring to. Mr Jagot's view seems to have been that this covers any geographic data derived from the polygons. I do not accept that. It is far too wide. An intermediate position was the submission that geometric information like a polygon centroid (which is after all an x,y co-ordinate) and can be said in a general sense to be geometric information associated with the polygon, fell within the clause. I do not agree with that either, for two reasons. First the words themselves are apt to refer to the existing x,y co-ordinates which are already associated with the polygons when those polygons are provided. There is no hint of a reference to derived data. Second, at its heart what is being protected is the polygons. Derived data, whether it happens to be a centroid with an x,y co-ordinate or other geometric information such as the area of the polygon, does not allow the recipient to recreate the polygon. It does not give it away.
77m store with the INSPIRE polygon.
77m. 77m's use of the INSPIRE polygons has been authorised by HMLR.
The A1 Match licence
77m contends that the relevant factual matrix includes the following particular points:
i) The parties' mutual understanding of 77m's commercial need for the A1 Match Licence. This included a need to cleanse non-addressable sites from the INSPIRE polygon datasets.
ii) HMLR was well aware that 77m wanted to link the INSPIRE IDs to addresses.
iii) HMLR knew that a large number of records needed to be matched, a figure of 3.5 million records was mentioned. It was the parties' common intention that it would be preferable to request them in stages rather than all at once. There was also mention of records changing on a monthly cycle and a question whether daily transactions would be available in the future.
77m. The question is what did 77m tell HMLR about why 77m wanted the data. OS submits that HMLR only understood that 77m wanted to "cleanse garbage polygons". That is much narrower than what 77m actually used the A1 Match data for. 77m's case is that HMLR's understanding was much wider (or at least ought to have been, given what 77m said). The second aspect relates to the procuring breach case. 77m argues that the supply was to be on a more or less continuous basis and that HMLR knew and accepted that. OS does not agree. Both aspects are matters of construction of the licence but 77m relies on the context as part of its case on construction.
77m led HMLR to believe was that the purpose of the matching was for suppressing and removing irrelevant and potentially incorrect information. This can be summarised as cleansing garbage polygons and as removing non-addressables. Although strictly speaking non-addressable sites and garbage polygons are distinct, the difference does not matter. These expressions convey the same sense of what HMLR was told. Moreover they convey a materially different concept from the idea of using the address matching to link INSPIRE polygons to the addressable locations in 77m's data and then go further and associate high quality geospatial information derived from the INSPIRE polygons with those addresses. 77m never told HMLR that that was something they intended to do (or had done).
77m wanted to use the results of the A1 matching process in order to cleanse garbage polygons and/or remove non-addressables. I accept that that is something 77m did intend to do and did in fact do. However it was not all that was done. I do not believe it was an accident that 77m as an organisation and Mr Highland in particular did not tell HMLR the whole story.
77m's behalf, that creating a link is a consequence of matching. But I accept Ms Wiles' evidence that that was not discussed with her. I also accept Mr Simmons' evidence that garbage records can be identified without any need to link the addressable records (my emphasis) within the A1 Match data to 77m's full Master Address List.
77m's commercial need for the A1 Match Licence which the parties had was to cleanse garbage polygons/non-addressable sites from the INSPIRE polygon datasets. HMLR did not know that 77m had any other purpose in linking INSPIRE IDs to addresses.
77m that HMLR had decided to treat the service as a one off for their own internal purposes (which is what happened, at least at the start). HMLR knew, because of what Mr Highland told Ms Wiles, that more sites were likely to be identified as needing to be matched over time. 77m certainly never told HMLR that there was only ever going to be one request. One conversation was about keywords and Ms Wiles knew and understood its relevance. The point is that a keyword (such as "village green") was being used by 77m to identify a non-addressable site and so if more keywords were to be used in future (which is what Ms Wiles was told) more matching would be required (which is what Ms Wiles understood).
77m says that the standard terms are significant, because they define "Services" and then provide the framework within which the Services of the agreement will be performed. The Services are "The service or services that we supply to you as set out in the Contract Schedule or Schedules or any additional services required by you from time to time." 77m contends that this supports its case about the ongoing nature of the agreement and means that the scope of the Services includes further requests made by 77m under the A1 Match Licence in addition to those set out in the contract schedule.
77m argues that the A1 Match Licence itself does not specify "to the contrary" and that this clause also indicates that the "Services" were to be ongoing and of indefinite duration.
77m also referred to clause 3 of the standard terms which deals with variations and additional services, providing that if the customer wants HMLR to provide additional services to those already agreed then supplemental terms will be agreed and put into a further contract schedule. Since no other relevant contract schedule was entered into despite the further supplies of A1 Match data after the February 2014 contract, 77m contends that this shows that no new or different services were regarded as being supplied by HMLR.
"In consideration of You paying to us the Price, we will provide You with the Services on a continuous basis unless terminated sooner by either party in accordance with the Terms and conditions."
"We will return to you a Response File (in Microsoft Excel format), identifying for all the INSPIRE IDs within the Customer File the property descriptions, as extracted from the register."
77M.
"The Bespoke price is volume based; £2,500 plus VAT."
"You have a business requirement to verify the INSPIRE data held on your internal systems and to confirm whether 910,000 INSPIRE IDs relate to non addressable sites. The Information will be limited to this use and you should confirm destruction of the data following completion of your cleansing process."
"11. We will Not:
Warrant that the Information provided on the Response File will be fit for your particular purpose nor do we warrant the completeness or accuracy or error free nature of our delivery of any Information on the Response File
You undertake:
11.4 Not to copy, sell, distribute, send or make use of the Information provided on the Response File (or any other information we provide You with as part of our delivery of the Full Service) other than for the Permitted use."
77m contends that on its true construction the contract between HMLR and 77m provided that the services provided by HMLR were continuous. That explains why, after the matching service for the 910,000 INSPIRE IDs referred to on the contract were provided, 77m made a further five requests for the service, sending a total of about 7 million more INSPIRE IDs to HMLR, and HMLR responded by providing Response Files and charged fees for each request broadly in proportion to the "volume based" fee in the A1 Match licence document. No other contract documents were signed. Thus, contends 77m, it was a breach of that term when HMLR failed to provide a matching service in response to 77m's seventh request made in August 2015.
77M had to repeat the request. I cannot read that clause in that way. Clause 4 of the A1 Match Licence, when read in the context of the documents as a whole and the circumstances leading up to its signing, only makes sense as a reference to a continuing relationship into the future whereby 77m will provide more INSPIRE IDs and HMLR will respond with matching A1 property descriptions. No specific price was agreed but pricing clause 6.4 shows that the parties were in agreement that the volume would determine the price. The terms of the encryption clause 7 also only make sense if further supplies from 77m (i.e. lists of INSPIRE IDs called Customer Files) were to be made in future. The standard terms also lend some support to 77m's case although they are not determinative on their own. The circumstances leading up to the signing of the agreement did not include anything by way of context which would rule out such a construction. If anything, they support it.
77m. It follows that HMLR's refusal to supply a Response File in response to the seventh request was a breach of that contract.
77m contends that clause 9 refers to two distinct uses, first verifying the INSPIRE data held on 77m's internal systems and second confirming whether 910,000 INSPIRE IDs relate to non-addressable sites. OS contends that the clause is referring to a single use for the Information, not two uses, and that that single use is the same as the one made known to HMLR in advance – i.e. cleanse garbage polygons/non-addressable sites from INSPIRE polygon data held by 77m.
77m has already acquired INSPIRE data from HMLR (and may acquire more in future if more becomes available) but it does not need to be verified in the abstract. On the other hand for 77m to provide a list of INSPIRE IDs which it thinks are or may be non-addressable sites and for the A1 property descriptions linked to those INSPIRE IDs then to be given, that would allow 77m to verify that it was right that they were indeed non-addressable sites. In other words the terms "to verify" and "to confirm" are duplicative. Second, bearing in mind the context, reading the clause as referring to a single use makes sense since HMLR had only been told about a single use for the data.
77m's case on the scope of Permitted Use.
77m's use of the A1 property descriptions is explained in the section describing Matrix. 77m did use the data to identify non-addressable sites/garbage polygons but that is not all that was done. It used the link between the INSPIRE ID and address given in the A1 property description for addressable sites (my emphasis) as a way of specifying the geospatial coordinates of its own list of addresses in the Master Address List. It did this to create its anchor points. This activity was not permitted by the Permitted Use.
77m over the period in which the A1 matching took place were not picked at random by 77m. The evidence about the reasons for picking INSPIRE IDs was not clear. I am not sure it matters but in case it does, I find that 77m did select some IDs on the basis that they may have been non-addressable or garbage polygons but also selected others for other reasons. One reason for selecting some IDs was to help with the problem caused by addresses in a given postcode which were only building names and not numbers. These cause difficulties for streetwalking because they have no inherent order. Mr Highland accepted this was a reason for selecting IDs. Its significance is that these are being selected to obtain a good geolocation for addressable sites, not for cleansing non-addressable sites.
77m's case namely that all the licence does is give permission to carry out certain acts such that if the licensee does acts wider than the scope of the permission granted, there are no consequences as far as the contract is concerned. That is not right in terms of clauses 9 and 11.4. They make clear that as a matter of contract 77m would commit a breach of the contract if it did something wider than the permitted use. Therefore I find that 77m has breached the A1 Match licence.
77m gave two reasons why it has not yet deleted the A1 property descriptions. One was because of the existence of these proceedings. The other was described in 77m's skeleton argument (paragraph 7.36) as because "the cleansing process is not yet complete, primarily because OS intervened to instruct HMLR to stop supplying Response Files, so that 77M has at least one outstanding request for data". There is some truth in this insofar as it is linked to the failure by HMLR to answer the seventh request but it is not accurate to call the process "cleansing" for the reasons already given.
77m, not HMLR and 77m. Breach of the A1 Match licence by HMLR is relevant to the procuring claim. Enforcement of the A1 Match Licence against 77m is a matter for HMLR not OS.
FAP licences and scraping of A1 property descriptions
77m used HMLR's FAP service to obtain addresses for some INSPIRE IDs. There are apparently four issues to be decided relating to HMLR's FAP service but each side characterised them in different ways. The first issue is what terms apply to FAP. The second is what is the scope of whichever terms apply. The third is a factual question, whether about 3.5 million records were obtained by automated scraping. There seemed to be an argument about the effect of the way in which HMLR invited 77m to use the FAP service but as I understand 77m's case, it does not say that the invitations purported to give 77m a licence different in scope from the terms to be decided on under the first issue.
77m is right that HMLR did draw attention to the FAP service as being something to use given an INSPIRE ID. The same INSPIRE guidance document which contains the INSPIRE Download Terms expressly does so.
What terms apply?
77m did. 77m calls the part in which one can get an address without registering Stage 1 and the second part after registration Stage 2.
77m's case is that the terms applicable to stage 1 are different from those applicable to stage 2. The point arises because if you look carefully, it can be seen that the relevant webpage contains two different cross-references to what are in fact two different sets of terms. One might have thought the situation was tolerably clear but it is not.
77m is at the bottom of the page in smaller type and with much less prominence. It is in fact a link to the OGL.
77m maintained that while the version in place in May 2016 contained a reference to private and domestic use, the versions at the relevant times (2011 onwards) were not so limited in any event. I do not understand OS now to contend otherwise. That has the consequence that the fact that the 480,000 addresses manually downloaded from FAP were used for commercial purposes was within whichever terms were applied by HMLR to those addresses.
77m is right that the FAP specific terms are drafted in such a way that really only makes sense in the context of Stage 2. For example clause 3 of the 2016 terms provides:
"In order to obtain services through Land Registry's Find a Property service you will need to register for the services. You must register via our 'Find a Property' website through the 'Find a Property' login."
What is the scope of the applicable terms?
Was FAP data scraped?
77m has which came from the service under the A1 Match licence, shortly before trial it emerged that there are about 3.5 million more such records whose origin cannot be accounted for. OS contends they must have been scraped. Mr Highland could not account for where they came from but maintained he was convinced 77m did not scrape.
77m's behalf that the data might have come from three other sources published by HMLR – data about property owned by corporate entities, the Business Gateway and data obtained from Mr Petty under a FOI. However there is no link to INSPIRE IDs in any of these three and so they cannot help 77m.
77m. However the latter is not so improbable since 77m did indeed use a service whereby individuals in Pakistan were paid to undertake the task of manually downloading this kind of data. The invoices were exhibited to Mr Highland's evidence. The documented work in Pakistan was not on a scale as large as 3.5 million records but it was done.
77m then Mr Highland only has himself to blame. It is true that the matter was raised very late but it relates to such a large number of records that I would be very surprised if the sole source of evidence relevant to this was one laptop. I find that the relevant records, which seem to be 3.5 million in number were acquired by 77m using an automated tool, i.e. by scraping.
Consequences if use was unlicensed
77m made an open offer to delete them but that does not deal with any consequences of their use in creating Matrix, which I have found therefore was unlicensed.
The RoS Land Values licence and what did 77m actually do with the data?
77m obtained two different datasets from RoS, the RoS Land Values data and the RoS INSPIRE cadastral seed points. The terms applicable to each are different. The terms applicable to the Land Values data are the RoS Land Value Licence from 2012. The terms applicable to the RoS INSPIRE data are the RoS INSPIRE terms from 2015. There is not now any issue about whether or not 77m's actions were permitted by the terms of the RoS INSPIRE terms. The issue is whether they were permitted by the RoS Land Values licence.
77m was that this centroid/geolocation consisted of OS data and 77m knew that. So, as explained in the section dealing with Matrix, what 77m did was this. 77m matched the addresses in the Master Address List with the address data in the Land Values data, then found the nearest INSPIRE cadastral seed point (which is itself an x,y coordinate) to the relevant centroid/geolocation in the Land Values data for that address and then, instead of storing the Land Value centroid/geolocation data for that address, stored instead the INSPIRE cadastral seed point against the address in the Master Address List. So 77m ended up with a link between an address in the Master Address List and an INSPIRE cadastral seed point (which is itself a good quality geolocation and, critically, was available for use by 77m). The link was provided by using the Land Values data. OS contends this use of the Land Values data was outside the 2012 licence.
(a) Data is referred to as "Land Values plus House Type" data from 1 January 2005 to 31 May 2011 for every registration county in Scotland. This is in the first part of clause 1.1.
(b) The second part of clause 1.1 provides:
"The Data will be provided to you to allow you to develop a web service containing house sale information on the following website: http://www.
(c) The third and fourth parts of clause 1.1 refer to the Data being provided on the understanding that 77m will be purchasing ongoing "Land Values plus House Type" Data and provide for a review after two years. Nothing turns on this.
(d) The fifth part of clause 1.1 provides:
"This licence grants you the following non-exclusive rights:
- To reproduce the Data in computer-readable form on your Website (Subject to the conditions of Clause 3 below)
- To link your Website to the Internet so that it may be accessed by your customers…
- To charge your customers for access to the Data
- To publish records and hardcopy publications using the information contained in the Data…"
(e) The other relevant clause is at 1.5, as follows:
"The Land Values data is provided for your exclusive use and will not be published, assigned or sold on in any way except as indicated within the agreed use shown above."
(f) Clause 3 deals with data protection and requires 77m not to publish certain personal data.
77m argued it meant the whole of the dataset provided by RoS. It is clear that the dataset did contain more than house prices and house types both in fact (it contained an address and the centroid/geolocation) and as contemplated in the licence. The licence refers to other "parts" of the Data apart from house price and house type at the end of the second part of clause 1.1 and it seems from data protection clause 3 that the house owner's name would also be included.
77m had agreed with OS's narrower definition in the Re-Amended Particulars of Claim at paragraph 24U but that is not right. In that paragraph 77m contends that the term refers to the data set, which is 77m's case.
77m's case. However the bullet points in the fifth part of clause 1.1 do not make sense if Data there refers to everything in the dataset but do make sense if all they refer to is house price plus house type. That is because the first bullet permits reproduction of Data on the website but the second part of clause 1.1 makes clear that it is only house price and house type which is to be made available via the website. Other parts of the Data are to be used for internal modelling. The same problem arises for the third and fourth bullets.
77m to use house price and house type to develop a webservice which makes those two items of information available but it only allows 77m to use other parts of the dataset for internal modelling purposes in the development of the website. There is no other permitted use of information which is not house price or house type apart from internal modelling purposes as part of developing the website.
77m also suggested that its approach to the definition of Data had to be correct because it would make no sense if, for example, the licence permitted 77m to do the various acts defined by the bullet points (reproduce the Data on the website, charge its customers for access to any of the Data, etc.) but could not use the Data itself save for very limited purposes. I do not agree. The terms as a whole make sense for the reasons I have explained.
77m wanted the data which was on offer, but they do not mention the crucial second purpose which 77m had for the data, i.e. to ignore the land values and house type and use the simple combination of centroid/geolocation and address obtained from RoS to ascribe good geolocations to 77m's own Master Address List. The ostensible use emerging from the RoS Land Values licence is to operate a web service containing house sale information. Matrix is not itself a web service, although no doubt it could be used to provide one; and it is by no means limited to being a house sale information service, although again, as I understand it, could be used to provide one. What is not mentioned in the licence at all is the second use concerned with the centroid/geolocations.
77m has done and wishes to do.
77m to use the data to do what it did in creating Matrix.
77m contends that it does permit 77m to do what it did. 77m argues that the words have to be understood in the context and that context is an overall agreed use for the Data which is the creation of a commercial product which will provide "a comprehensive overview for any location" and "aggregates many datasets together". These are both phrases from the second part of clause 1.1. 77m argues that this would not be possible unless the Data could be linked to a particular location, and matched to other data sets.
77m also argued that the terms permit it to use all of the data to create its "one stop information service", but that if 77m publishes the data on this service it will only make available the house price and house type but that can be after 77m has successfully linked the particular address to a location. The only concern is to ensure that individual names linked to addresses are not published– hence clause 3.
77m to use the data to produce a new geolocation for all or substantially all of the properties in the dataset. That was not an act of internal modelling.
77m seek to extend this logic to include the sort of linking which this case is concerned with and to argue that the reference to aggregating datasets together supports that approach.
77m actually did. The test is one of necessity, and that is not necessary.
77m is correct that if that is the limit of the licence it could not have done what it wanted to do, but that does not alter the analysis. There was no evidence to which I was directed about the circumstances leading up to the signing of this licence which might shed light on the issue. If 77m did not tell RoS what it intended to do in sufficient detail, it only has itself to blame if the contract does not permit it.
77m's use of the RoS Land Values data was not licensed by RoS.
Authority
77m's activity was within the INSPIRE Download Terms.
77m for the purpose of commercial re-use by 77m. Since I have found that what 77m did was not permitted by the RoS Land Values licence anyway the point is academic. There are no findings of primary fact based on live evidence which relate to this point and so I will say no more about it. The Re-Re-Re-Amended Defence and Counterclaim did also refer to addresses from RoS but as far as I can tell the infringement alleged was based on centroids.
77m for the purpose of commercial re-use by 77m. Since I have found that 77m's scraping was not permitted by either of these licences the point is academic as far as those addresses are concerned. For reasons explained below it is also academic in relation to the 480,000 manually downloaded FAP addresses.
77m in particular. I am not concerned with whatever might be made of representations to the public at large made in public documents but to a series of specific matters which Mr Highland gave evidence about. These did not withstand counsel's cross-examination. The only representations relied on in evidence by Mr Highland were in his 6th witness statement. However when pressed on them, it emerged that either he had not seen them at the time, or they were not about addresses at all or, to the extent they were said to relate to the FAP, they in fact did not. I find that no relevant representations addressed specifically to 77m were made at all. There was a further point, namely whether Mr Highland knew that OS's rights went beyond polygons (he accepted knowledge of rights to polygons) and on to addresses. I do not accept OS's case on that. In the cross-examination (at T1/140-142) Mr Highland did not accept he thought OS had rights in addresses. There is no reason why he should have and the point put to him did not prove it. I accept Mr Highland's evidence on that.
77m relating to Lichfield DC, there is one which resonated with me more strongly than the others. I agree with 77m that the Lichfield DC circumstances can be analysed in terms of apparent/ostensible authority from the point of view of a member of the public (77m). OS cited East Asia Company Ltd v PT Satria Tirtatama Energindo (Bermuda) [2019] UKPC 30 as authority for the principle that:
"ostensible authority is a relationship between a principal and a third party created by a representation made by the principal, which the third party can and does reasonably rely upon, that the agent of the principal has the necessary authority to enter into a contract on its behalf".
77m) to rely on it. There is no ostensible reason not to. As regards OS itself, the fact that GeoPlace is not wholly owned by the government is irrelevant since OS is the entity entitled to grant licences in respect of AddressBase.
77m downloaded the Lichfield data in 2016, in February of the previous year OS had a publicly promulgated scheme called presumption to publish which was itself part of the wider government open data initiatives. Under that scheme a public body such as a local authority could publish certain kinds of data to be made available under the OGL. The public authority was simply required to give prior notice to OS. In fact in this case Lichfield DC did not do so but publication of the existence of such notice was not part of the scheme so there would no reason for a member of the public to think it had not been given. The details of the scheme were subject to various details and exceptions. They do not matter. In my judgment 77m is right that from the point of view of the public, it would have been likely that the Lichfield DC data which was made available would fall within the scheme. They would have every reason to assume it was within the scheme and no reason not to. Although he did not accept the conclusion, the answers given in cross-examination of O'Meara of OS on this issue supported 77m's case. His major qualification was that it depended on the data. I agree but the Lichfield data was the kind of data which the presumption to published was concerned with.
77m's point of view, the terms of the OGL apply to the data downloaded from Lichfield DC. The OGL permitted 77m to do what it did with that data.
Infringement of database right by 77m
i) the use of centroids from the RoS Land Values dataset; and
ii) the use of addresses from HMLR.
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).
77m originally pleaded exhaustion but this was dropped.
Assessment
Centroids from RoS, extraction and consultation
77m carried out to use the centroids to find the nearest INSPIRE Cadastral seed point involved the temporary transfer of those centroids to the operating memory of a computer. That is another medium. The "other medium" to which they were transferred was the part of 77m's system which carried out the processing to work out the nearest INSPIRE cadastral seed point. Subject only to the issue of consultation which I address below, I would hold that this amounted to an infringing act of extraction of the contents of a database. The fact the centroids were not stored permanently in a new database does not matter because extraction can involve temporary transfer. The fact the individual items of data were transferred one address at a time and then, presumably, discarded before transferring the next one, makes no difference. The fact that the database from which 77m extracted them was the RoS Land Values rather than from Topo itself does not matter. 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. The legal test requires extraction of all or a substantial part of the contents of the database. 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. In other words, in this case, a substantial part of Topo. The set of centroids for the land in Scotland is a substantial part of Topo (and 77m did not suggest otherwise).
77m kept the data in the original form provided to it by RoS but that is not relevant to this issue.
77m contended that what was done was only an act of consultation and not extraction. 77m emphasised that 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 is not the (unlawful) centroid it is the (lawful) seed point. 77m argued that it was using each given centroid for information purposes – i.e. to draw an inference about other data (the closest seed point).
77m was doing was not consultation but extraction. It was not so obvious to me. It is not too hard to see why 77m's actions fall within the definition of extraction itself (see above) but what is less clear is why they do not also fall within the scope of consultation. If they do then I take it from the cases that there is no infringement.
77m have done is not consultation. The reasons are these. What is apt to confuse the issue is that in economic terms what OS is trying to stop is Matrix, but Matrix does not contain the relevant contents (the centroids). Matrix is not the "other medium". The fact that the process which involved the putative act of extraction by 77m of the centroids was ultimately something which led to another database being produced, is irrelevant to the analysis. If what 77m did is an act of extraction that must be true whatever it is 77m went on to do having used the centroids for its purposes and discarded them. This is I think what the court is referring to at [47] of BHB v William Hill. That case also used the term appropriation to refer to extraction, which has been picked up later (see [51]). Moreover while re-utilisation involves making available to the public, extraction does not have to.
77m does not do this sort of consultation. However I have misgivings about this way of reading the cases. It is not clear that that is what is meant and, for example, I do not see why consultation by a user themselves sitting by a terminal should be exempt while consultation by a user accessing data through their own device like a mobile phone might not be.
77m is using the centroids from the original database for information purposes in a sense (to draw an inference) and that chimes with the references to consultation in DirectMedia and Innoweb. Moreover 77m was given access to the database albeit what 77m then did was not licensed. However what I think deprives 77m's activity of the character of mere consultation is its scale. When a member of the public, or a commercial user, wishes to consult the database to learn something about a particular entry or to learn something about particular entries, they consult the database. By contrast someone who takes all or a substantial part of all the contents, and transfers them into another medium so that they can use them, is appropriating to themselves a substantial part of the investment which went into creating the database. Protecting that investment is what database right is for. That is what 77m did and that is why it is extraction not consultation. There may be a grey area between the sort of commercial consultation I refer to and wholesale activity of the kind carried out by 77m but the scale of 77m's actions puts them firmly on the extraction side of the line.
Addresses from A1 Match and FAP
77m has committed an act restricted by database right. 77m used the addresses provided via A1 Match and FAP in order to match them with an existing address 77m already had in the Master Address List. To do this the A1 Match/FAP address had to be copied into temporary computer memory.
77m selected, I take it that an attempt was made to match at least every A1 Match address which had not been identified as a non-addressable or a garbage polygon. That will have represented a substantial part of the A1 Match data. It is more likely than not that the same applies to the FAP addresses, in other words that 77m must have defined a set of INSPIRE IDs for which it sought addresses by accessing FAP (manually or by scraping) and so the same conclusion follows, that at least a substantial part of the FAP addresses were themselves tested against the Master Address File to try and match them.
77m has also kept the A1 Match and FAP addresses in the dataset(s) it acquired from HMLR. At least as far as A1 Match is concerned, that act of keeping is licensed under the A1 Match licence albeit 77m may owe a contractual obligation to HMLR to delete the A1 Match data at some point.
77m has not made the addresses acquired from A1 Match or FAP available to the public.
77m and OS's database rights relating to the Addressing databases. The issues can be dealt with by focussing on the current AddressBase product alone. The simple starting point is that 77m got the addresses in issue via the A1 Match process and FAP from HMLR, not from OS. What, one might ask, has OS got to do with it? The answer is as follows. The addresses acquired via the A1 Match process and FAP were the A1 property descriptions. There are two sources for the A1 property descriptions. Most of them have come from something called the Land Registry Property Gazetteer (LRPG), which is HMLR's own in house address database. The remainder have come from information given by HMLR's "customer", i.e. a person seeking to register a title. OS can have no claim to database right relating to the addresses from HMLR customers, the issue is the addresses from the LRPG.
77m puts it, the text in these A1 property descriptions comes from the PAF, albeit via AddressBase.
Ordnance Survey is a mapping organisation, one might think that the real value of AddressBase is that the addresses are accurately geolocated, and one might think that its major distinguishing feature over the PAF is that the addresses in the PAF are not geolocated. Thus once the PAF addresses find their way into AddressBase the value added is an accurate geolocation. Viewed this way, one might wonder how it is that OS can effectively appear to have acquired rights over the PAF itself. 77m contends that is what is going on in this case. 77m's point is that the geolocation information it uses comes from INSPIRE and is lawful. The only thing 77m is using which derives from AddressBase is the address text itself and that came from the PAF.
77m but there is no clear evidence from which to draw even an approximate conclusion about scale. Mr Robson's evidence, who was called by OS, is also against it.
77m submitted that all this cannot change the fact that what was being consulted by HMLR was in reality just PAF data. I do not agree.
77m. The point 77m submitted this cross-examination established was that the addresses in the NAG had to match the PAF (or other third party data) and that, as 77m put it, "the NAG was in essence a cleansed version of PAF". These points are true as far as they go but they seriously understate the effort which goes into the verification process and its significance. GeoPlace receives PAF files from Royal Mail every day. On average 90% of the new records can be matched to addresses already in the NAG. The 10% which cannot be matched are sent to local authorities at the end of each month to check. Mr Griffiths said that after years of continual investment and improvement by GeoPlace 99.7% of PAF records and 99.9% of VOA council tax records have found a home in the NAG. If a record cannot be matched it will not be included and so records are not inserted directly from the PAF, but only enter the NAG once they have been matched and verified. Mr Griffiths explained that the investment in maintaining the NAG is the majority of GeoPlace's operating expenditure, which in recent years has been about £6 million pa. I accept his evidence.
77m, which emphasises that the text of the addresses comes from the PAF is true but ignores the considerable investment in verification of these addresses which is undertaken by GeoPlace to maintain the NAG. The fact the text comes from the PAF does not mean that GeoPlace has no database right in the collection of addresses in the NAG. It does.
77m, I hold that this represents a substantial part of the contents of the NAG and, subject to the defences below, this would represent an infringement of database right.
Defences
77m relied on the defences in Paragraph 3 of Schedule 1 to the Database Regulations. They are applied by paragraph 20(2) of the Database Regulations themselves. Paragraph 3 provides as follows:
Material open to public inspection or on an official register
(1) Where the contents of a database are open to public inspection pursuant to a statutory requirement, or are on a statutory register, database right in the database is not infringed by the extraction of all or a substantial part of the contents containing factual information of any description, by or with the authority of the appropriate person, for a purpose which does not involve re-utilisation of all or a substantial part of the contents.
(2) Where the contents of a database are open to public inspection pursuant to a statutory requirement, database right in the database is not infringed by the extraction or re-utilisation of all or a substantial part of the contents, by or with the authority of the appropriate person, for the purpose of enabling the contents to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed.
(3) Where the contents of a database which is open to public inspection pursuant to a statutory requirement, or which is on a statutory register, contain information about matters of general scientific, technical, commercial or economic interest, database right in the database is not infringed by the extraction or re-utilisation of all or a substantial part of the contents, by or with the authority of the appropriate person, for the purpose of disseminating that information.
(4) In this paragraph –
'appropriate person' means the person required to make the contents of the database open to public inspection or, as the case may be, the person maintaining the register;
'statutory register' means a register maintained in pursuance of a statutory requirement; and
'statutory requirement' means a requirement imposed by provision made by or under an enactment.
i) The contents of the relevant database are open to public inspection pursuant to a statutory requirement, or are on a statutory register,
ii) The contents extracted are contents containing factual information of any description,
iii) The extraction was by or with the authority of the appropriate person,
iv) The appropriate person being the person required to make the contents of the database open to public inspection, or the person maintaining the statutory register,
v) The extraction was for a purpose which does not involve re-utilisation of all or a substantial part of the contents.
i) The contents of the relevant database are open to public inspection pursuant to a statutory requirement,
ii) The extraction or re-utilisation was by or with the authority of the appropriate person (as defined above),
iii) The extraction or re-utilisation was for the purpose of
a) enabling the contents to be inspected at a more convenient time or place; or
b) otherwise facilitating the exercise of any right for the purpose of which the statutory requirement requiring the database to be open to inspection was imposed.
i) The contents of a database which is open to public inspection pursuant to a statutory requirement, or which is on a statutory register,
ii) The contents contain information about matters of general scientific, technical, commercial or economic interest,
iii) the extraction or re-utilisation is by or with the authority of the appropriate person (as defined above),
iv) the extraction or re-utilisation is for the purpose of disseminating that information.
77m acquired the data it did from a public authority (RoS or HMLR) and as a result of access to a database held by that public authority (RoS Land Values for the centroids and the Register of Title for the addresses). However the database right which would be infringed arises from another database – Topo in the case of the centroids and the NAG or AddressBase in the case of the addresses. How do these provisions work in such a case?
77m submitted the three step test did not apply but also argued that even if it did, the defences comply with it anyway. That was on the basis that they do not conflict with normal exploitation of the work if Parliament has required by statute that such contents be made available. The need for authorisation means there is no unreasonable prejudice to the rights holder's legitimate interests and since the defences are limited to data made available in public datasets by statute, they relate to a certain special case. I can see the force in 77m's point but I do not have to decide this question.
Application of the authorised extraction defence (paragraph 3(1))
77m used from the RoS Land Values dataset and the addresses 77m acquired from HMLR by the A1 Match and through FAP. I am not concerned with INSPIRE data.
77m contended that the RoS Land Values data was open to public inspection or are on a statutory register pursuant to the Land Registration (Scotland) Act 2012 and that the addresses from HMLR were open to public inspection or are on a statutory register pursuant to the Land Registration Act 2002 and the Land Registration Rules 2003 (see e.g. paragraph 5(5)). OS did not challenge any of that but submitted it was the wrong question based on the point of law I have decided above. OS contended that the right question was whether Topo (which is where the centroids came from) or the NAG/AddressBase (which is where the addresses came from) were publicly open or were a statutory register.
77m did was an act of extraction. No re-utilisation was involved because the FAP addresses were not made available to the public. OS disputed whether HMLR had authority to grant such a licence but I hold that it does not matter for these defences to apply. This example shows the authorised extraction defence working in the manner it should. The defence allows the public to take at face value the terms of an authorisation granted by a public body over the use of data that public body has made available on a public database it is responsible for.
77m had admitted to some acts of re-utilisation but that admission was in general terms and did not relate to the centroids or addresses in issue.
Application of the time and place shifting defence (paragraph 3(2))
77m any further than the previous defence. In any case I was not convinced the relevant use by 77m in either activity was for the purposes relevant to the time and place shifting defence.
Application of the general information dissemination defence (paragraph 3(3))
77m any further than the authorised extraction defence. OS accepted that the contents amounted to information about matters of general scientific, technical, commercial or economic interest but denied that what 77m did was for the purpose of disseminating that information because it was instead for profit. That was relevant because the sui generis database right is to protect investment. I have to say I am not convinced that the fact that a user wanted to operate for a profit must necessarily rule out the idea that they were doing acts for the purpose of disseminating information about matters of general scientific, technical, commercial or economic interest. Publishing an encyclopedia springs to mind. However it is not necessary to explore that any further.
Estoppel
77m sought to rely on various estoppels by representation allegedly made. There were two categories. One related to authority and does not arise. The other relates to the use which 77m may lawfully make of data pursuant to the licences already considered. Most of the representations relied on related to the INSPIRE polygons or INSPIRE IDs and therefore do not arise. Although paragraph 12.66 of 77m's written closing includes a reference to relying on representations made by RoS, as best I can tell those relate to authority only and so do not arise.
77m was able to use the FAP portal to verify its data. The idea that this could apply to addresses did not survive cross-examination (T1/177). I find that no relevant representations were made by Ms Nicholson or anyone else at HMLR that 77m was entitled or permitted to use addresses obtained from the FAP in the way it has done. I leave aside the point that what 77m did by matching addresses was not merely verifying data on any view – it was creating new links to geolocations from addresses. Also it is not and cannot be suggested that any encouragement of this sort could have led 77m to believe it could scrape the FAP data. Thus at best this could apply to the 480,000 manual FAP addresses. I have not got into that because of my conclusion under the authorised extraction defence.
Pleading points
77m's case that even if 77m was unlicensed it was still necessary for OS to prove that 77m had committed acts of infringement of database right. Purely in terms of the pleadings I have a little bit of sympathy with OS, particularly given the bewildering way in which this case was pleaded, but not that much. OS has the advantage of a team of experienced intellectual property lawyers. Its case is that 77m infringed an intellectual property right. One might expect the legal team for a rights holder to be able to articulate what that case was, which indeed they did when they had to. The position of 77m was never so clear cut as to absolve the team for the rights holder of needing to be in a position to do that. There was a list of issues too but that list itself was part of the problem.
Procuring breach of contract
i) a contract between a claimant and a third party must have been breached by the third party. An actual breach of the contract must take place, mere interference is not enough.
ii) the defendant must have known of the existence of the contract and its terms. It is not enough for the defendant to know they are procuring an act which in fact is a breach. To be liable the defendant must actually realise it will have that effect. Knowledge of circumstances which would indicate that fact to a reasonable person is not enough whereas turning a blind eye and consciously deciding not to enquire could well be.
iii) the defendant(s) must have intended to induce or procure a breach of that contract.
iv) such breach of contract must have been induced by the defendant. The question is whether the defendant's acts of encouragement, threat, persuasion and so forth have sufficient causal connection with the breach to attract accessory liability.
"Justification for interference with the plaintiff's contractual right based upon an equal or superior right in the defendant must clearly be a legal right. Such right may derive from property, real or personal, or from contractual rights. Property rights may simply involve the use and enjoyment of land or personal property. To give an example put in argument by Sir Nicolas Browne-Wilkinson V.-C., if X carries on building operations on his land, they may to the knowledge of X interfere with a contract between A and B. to carry out recording work on adjoining land occupied by A. But unless X's activity amounts to a nuisance, he is justified in doing what he did. Alternatively, the law may grant legal remedies to the owner of property to act in defence or protection of his property; if in the exercise of these remedies he interferes with a contract between A and B. of which he knows, he will be justified. If, instead of exercising those remedies, he reaches an accommodation with A, which has a similar effect of interfering with A's contract with B, he is still justified notwithstanding that the accommodation may be to the commercial advantage of himself or A or both. The position is the same if the defendant's right is to a contractual as opposed to a property right, provided it is equal or superior to the plaintiff's rights. In my judgment that is the position in this case; I therefore agree with the judge's conclusion and would dismiss the appeal."
Assessment
77m were continuous such that HMLR was obliged to supply A1 property descriptions in response to a request from 77m, for a volume based fee. In August 2015 77m made a seventh request to HMLR but in September 2015 Santiago Jagot of OS emailed Ms Nicholson of HMLR to ask about the supply of addresses to 77m. He had heard from Mr Highland that 77m had an agreement with HMLR about this. HMLR never supplied any further A1 property descriptions to 77m after that.
77m raised the possibility of amending its pleading to plead an earlier date but that would in all probability have required an adjournment and when I put that to 77m, the application to amend was dropped.
77m's case on procuring is based on the submission that HMLR's continuing breach after August/September 2016 was procured by OS, once it had notice of the terms of the licence.
77m in response to the seventh A1 Match request. Given the pleaded case it is not necessary for me to find what Mr Jagot knew at that time about the contract between HMLR and 77m but doing my best I must say I think HMLR were downplaying to OS what they were doing with 77m and in all likelihood emphasising the bespoke and, as they put it, "one off" nature of the relationship. I doubt Mr Jagot at that time knew that there was the kind of continuous supply obligation which I have found to exist.
77m with any more A1 Match data. It is true that internally HMLR had started having concerns and may even have suspended supply but I am not satisfied a final decision was made until after Mr Jagot intervened.
77m suggested that at no time after August/September 2016 did OS withdraw its "instruction" to HMLR not to supply a response file to 77m. By April 2017 these complex legal proceedings had been on foot since September 2016. I do not accept that in those circumstances not doing something after April 2017 satisfied the legal test, even if in other cases it would be possible for inaction to amount to procuring.
77m) and as part of which sub-licence the licensee is supplying something to the third party in which the IP rights subsist (addresses) for the third party to use under the sub-licence, if that rights holder then finds out that the third party is acting in breach of the terms of the sub-licence and using what has been supplied in a manner which infringes the underlying rights, the rights holder might be justified in seeking to procure the licensee to stop any further supplies to the third party even knowing that the licensee was bound by contract to do so.
Conclusion
i) 77m has not breached 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 INSPIRE polygons fails.
ii) 77m has breached the A1 Match licence.
iii) 77m scraped 3.5 million addresses from HMLR's Find a Property Service and breached the applicable terms.
iv) 77m's use of the centroids breached the RoS Land Values licence.
v) 77m's use of the centroids from the RoS Land Values dataset and the addresses acquired from HMLR via the A1 Match licence and scraping the FAP service amounted to acts of infringement of database right held by Ordnance Survey or GeoPlace in the Topo database and the NAG/AddressBase database respectively.
vi) 77m's use of the addresses manually downloaded from FAP, which were about 480,000 in number, was within paragraph 3(1) of Schedule 1 of the Database Regulations (the authorised extraction defence) and therefore did not infringe any OS database rights. 77m's other activity did not fall within any of the defences in paragraph 3 of Schedule 1 of the Database Regulations.
vii) No estoppel by representation relating to 77m's actions arises.
viii) No issue about authority to grant licences arises.
ix) The claim for procuring breach of contract fails.
77m achieved a measure of success, the winning parties in this case are the claimants on the counterclaim, Ordnance Survey and GeoPlace.