England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
Chancery Division
Intellectual Property

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th November 2007

1.                   In this case, the claimants apply for judgment in default of service of defence.  The defendant has in fact served a Defence, and an Amended Defence, out of time.  The claimants take no point on time, but say that, since no arguable defence is disclosed, even by the Amended Defence, it would be pointless to permit it to be served out of time.
2.                   The defendant has applied to strike out the application for judgment, for permission to apply for judicial review, for joinder of Mr. Brown as a party and for other interlocutory relief specified in paragraph 8.4 of the Amended Defence.
3.                   The claim is for breach of Crown copyright.  The position of the claimants is not in dispute, and I can take it directly from the witness statement of Susan Storor, who is a solicitor and the Head of Intellectual Property and Legal Department at the 2^nd claimant ("Ordnance Survey"):-

"Ordnance Survey is the national mapping agency of Great Britain.  It is an independent non-ministerial government department with Executive Agency status.  As such it is managerially separate from government.

Ordinance Survey was established as a Trading Fund by the Ordnance Survey Trading Fund Order 1999 (under the Trading Funds Act 1973).  Pursuant to that Order, Ordnance Survey must finance all of its operations through its revenue.  Ordnance Survey's primary source of revenue is its licensing income received for digital mapping products provided in the course of its commercial activities, namely licensing revenue.  Ordnance Survey as a Trading Fund is accountable to parliament through the Secretary of State for Communities and Local Government.

Ordnance Survey is also required to achieve further financial objectives in respect of its revenue in the form of return on capital employed targets set out in Treasury minutes from time to time.  The most recent Treasury minute dated 15 January 2004 ceased to have effect on 31 March 2007 and a replacement minute is currently being discussed with Treasury.

Under Letters Patent from Her Majesty, the Controller of Her Majesty's Stationery Office ("HMSO") has personal responsibility for the management and licensing of Crown copyright material.  Under the terms of a delegation of authority between the Controller of HMSO and Ordnance Survey ("the Delegation"), Ordnance Survey is permitted to grant licensees the right to use or re-use Ordnance Survey mapping and is also authorised to bring proceedings in respect of infringements.  I refer to a copy of the Delegation at pages 105 to 110.

In summary, Ordnance Survey operates as a commercial entity whose main business is the licensing to customers, including government, businesses and consumers, of Crown copyright in its digital mapping products.  All uses of Ordnance Survey digital mapping products will be licensed in some way and will generally return to Ordnance Survey a fee for such use, even where an end user may not itself have to pay for the use of the relevant product.  It is the controls imposed on the use of Ordnance Survey's digital mapping products in the form of licensing and the licence fees received that allow Ordnance Survey to fulfil its Trading Fund requirements.

4.                   The defendant's business is the provision of wind turbines in the United Kingdom for the generation of renewable energy, in the course of which it has been concerned with developing techniques for planning applications and environmental statements.
5.                   Ordnance Survey provides map data to provide a networked database service known as EDINA to members of the UK tertiary education and research community.  One of the resources offered is called DIGIMAP, which allows access to Ordnance Survey Digital Maps ("Digimaps"), the use of which is licensed as part of the service.  One of its licensees in 2005 was the University of Southampton.
6.                   During both the Easter and Summer vacations in 2005, the defendant employed a student from Southampton University who would have been entitled to use the service for educational purposes, but who, having failed to understand the subscription process, used the password and login details of a fellow student.  While employed by the defendant, the student used EDINA, both for the purposes of his degree course and to assist him in the tasks which he was asked to perform for the defendant.  When he left, the username and password of his fellow student were cached on the defendant's computers.
7.                   According to his uncontradicted statement:-

"I did not tell anyone at Green Amps about the on-line resources that were available via Athens and I did not make any substantial downloads while I was working for Green Amps.  I did not finish any site specific templates while I was at Green Amps.  I did not give anyone permission to use the password and login and was not aware that they had used my login and password until I was advised of this by the University.

I was aware that my passwords and login details were cached on the computer I was using and although I deleted all personal information from the computer before I left.  I did not think about deleting the password and login and would not have known how to do it."

8.                   The defendant admits that it nevertheless used the username and password which it found on the computers, and that it downloaded digital maps for the whole of Great Britain in three formats, namely 1:25,000 scale Colour Raster, 1:50,000 scale Raster and Land-Form Panorama, without permission from the claimants and without payment.  The annual licence fees for a single computer terminal for these products would have exceeded £16,000.
9.                   The defendant's reaction to a letter of complaint written by the University of Southampton in April 2006 was that its use of the data was for non-commercial research purposes, and that the fact that they accessed it through the account of somebody other than their employee was "a de minimis matter"; the University's letter and its actions against the students were described as "a witch-hunt".  In later correspondence with the claimants, the defendant has refused to take a license, and has contended that it was entitled to copy the Digimaps.
10.               In order to do download the Digimap product, the defendant would have had to see on the screen the claimants' copyright terms and conditions, which notify the user that the Ordnance Survey data within Digimap is Crown copyright. The defendant would also have had to click on an icon agreeing to the terms and conditions, which make it clear (inter alia) that access to the Digimap service is restricted to further and higher educational institutions and for educational purposes, which are defined as "education, teaching, distance learning, private study and/research".
11.               The student's evidence that he did not make any substantial downloads while working for the defendant or finish any site specific template is not in dispute.  Therefore, whilst paragraph 5.1 of the defendant's draft Amended Defence alleges that the student "had unfettered access rights to EDINA and therefore was authorised access and use the OS Data so obtained", this would not assist the defendant even if it were correct, since it was not the student who accessed the data, but the defendant after the student's departure.  In any event, the student did not have access rights, since he had not subscribed to the service.
12.               It is therefore clear that the defendant's acts were not licensed and there is no dispute that unless justified by some provision of the Copyright, Designs and Patent Act 1988 ("the Act") or other provision of the law, they infringed copyright. The nature of the defendant's case was not entirely easy to understand from the Amended Defence.  At the outset of his submissions, Mr. Brown referred to a "God-given right of access" to the Ordnance Survey maps; as they proceeded however they focused mainly on the Re-use of Public Sector Information Regulations 2005 and section 29 of the Act.
13.               The Re-use of Public Sector Information Regulations implemented the EU Directive on this subject (2003/98/EC).  Article 6 of the Directive relating to the principles governing charging provides as follows:-

"Where charges are made, the total income from supplying and allowing Re-use of documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment.  Charges should be cost-oriented over the appropriate counting period and calculated in line with the accounting principles applicable to the public sector bodies involved".

14.               Paragraph 15(1) of the Regulations permits a public sector body to charge for allowing re-use and sub-paragraphs (2) and (3) repeat the terms of Article 6 of the Directive.  Sub-paragraph 5 provides that, where a public sector body charges for re-use, so far as is reasonably practicable, it shall establish standard charges.
15.               Mr. Brown's submission is that the terms of the Directive and of the Regulation permit the claimants to charge only the cost of reproducing the maps plus a reasonable return on the amount expended in doing this.
16.               The basis of this submission was said to be the view expressed in the Report of the Office of Public Sector Information ("IPSI") on its investigation of a complaint by Intelligent Addressing Limited that Ordnance Survey's activity of supplying its maps falls within its "public task" with the result that the Regulations apply to it.
17.               The issue as to what is Ordnance Survey's "public task" is clearly a difficult one.  However, assuming in the defendant's favour that OPSI is correct, then it is clear from the provisions of the Directive, reproduced in paragraphs 15(2) and (3) of the Regulations, that the claimants are entitled to base their charges on all the expenditure incurred in the collection of information, mapping and other activities carried out in order to provide the end product, together with a reasonable return on that expenditure, which represents their investment.  I can see no basis for the defendant's construction of the Regulations, which gives no effect to the words "collection, production…" or to the word "investment".  If, on the other hand, the supply of maps by Ordnance Survey does not fall within its public task, then the Digimap service would be an ordinary commercial activity unaffected by the provisions in the Regulations.
18.               Further, even if a public sector body sought to levy charges in excess of permissible charges, this would not give a member of the public the right to use the information free of charge. Paragraphs 17 to 21 of the Regulations confer on any person who believes that a public sector body has overcharged the right to invoke an internal complaints procedure, where this has been exhausted the right to make a complaint to the Office of Public Sector Information and, finally, if dissatisfied with its decision, a right to request a review by the Advisory Panel.
19.               Section 29(1) of the Act provides as follows:-

"Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement…".

20.               The defendant's case, as set out in the Amended Defence, is that it has developed a geographic information system, which it refers to as "the Mapping Tool" which is ultimately to be used in planning applications for wind turbines and is "essential in correlating the different mapping layers incorporated" in the environmental statements which form part of such applications.  However:-

"3.14    The Mapping Tool is a facility in development and (it may be said) currently has a 'Research & Development' status…

3.15   …once the Mapping Tool reaches a particular point where it could be finally brought to bear for the preparation of Planning Applications its mode may be regarded to have changed from 'R&D' to that of the generation of materials for planning applications.  At that point, (the defendant) argues, it becomes a function of a quasi-judicial process.  As such s.45(1) of CDPA 88 applies…".

Thus the defendant contends that there is no infringement of copyright at present, because of the research "status" of its Mapping Tool, and that once the Mapping Tool is used commercially there will be no infringement by virtue of section 45(1).

21.               In my view, this argument fails at the initial stage.  Section 29 requires both that what would otherwise be the act of infringement is "for the purposes of research" and that such research should be "for a non-commercial purpose".  The second of these requirements is plainly not satisfied.  This is apparent from the Amended Defence, and in more detail from a report sent to the claimants on 20^th July 2006, detailing the "end-use" which the defendant wished to make of the Ordnance Survey map data.  This describes the use which the defendant intends to make of its "Commercial Took Kit" (of which the mapping tool is part) in the following terms:-

"For some years (the defendant) has been developing a "Commercial Tool Kit" – a kit of parts the components of which all come together to make a successful deployment.  The intention is to use this Commercial Took Kit in the deployment of (the Defendant's) turbines.  Although the Commercial Took Kit was originally intended as a marketing tool to assist the Group in selling wind turbines, two years ago the Group strategy was shifted from wind turbine sales to energy production from in-house deployed wind turbines.  Therefore the Commercial Tool Kit was re-deployed in-house to support this endeavour…"

22.               Later in the document, there is the following, describing the defendant's in-house use:-

"Hitherto the Mapping System has been in "development" mode and although real-life site data has been used for testing no commercial use has yet been made (my emphasis) of the Mapping Tool for in-house activity. 

In due course a quantity of planning applications ... for (the defendant's) wind turbine deployment will be filed, and clearly attached to those applications will be Environmental Statements, in turn containing mapping data…".

23.               These passages in the document, and others, demonstrate that this is a commercial company and that, even if its use of the mapping data so far has been for research, that research is for commercial purposes.  Accordingly, section 25 provides the defendant with no defence.  As the point is put in Copinger at paragraph 9-28:-

"Presumably any research which, at the time it is conducted, is contemplated or intended should be ultimately used for a purpose which has some commercial value will not be within the permitted act". 

24.               In any event, the proposition that what the defendant has done in this case constitutes "fair dealing" is in my view unarguable.  What constitutes fair dealing is to be judged by an objective standard, namely whether a fair-minded and honest person would have dealt with the copyright work in the manner in which the defendant did: Copinger paragraph 9-54.  Amongst the main factors to be taken into account are the degree to which the infringement involves competition with the exploitation of the copyright work by the owner, and the extent and importance of the copying.  By both of these criteria, the defendant's infringement comes very high on the scale.  Added to this is the covert manner in which the information was downloaded, which Mr. Brown and any other person employed by the defendant who was involved must have known was illegitimate.
25.               Other arguments which appeared in the Amended Defence and in correspondence were not pursued, or at least not in any detail, in the course of with Mr. Brown's oral submissions, and I can deal with them shortly as follows:-

(a)                Entitlement under the Freedom of Information Act 2000: this does not assist the defendant because section 21 provides that information may be reasonably accessible even though it is accessible only on payment in accordance with its published scheme of payment.

(b)               The contention that the use of Ordnance Survey maps is a mandatory requirement of the planning process: whilst the use of Ordnance Survey maps is doubtless very common in planning applications, it is not mandatory, and in any event this would not provide a defence to a claim for infringing copyright by downloading maps without consent.

(c)                Central government support for the Mapping Tool: whatever support has been given, the defendant's evidence comes nowhere near suggesting that the government has consented to the defendant downloading the Ordnance Survey maps.

(d)               The contention that the Mapping Tool is for the "greater good" because it assists in the fight again global warming: assuming this to be correct, it does not provide the defendant with a defence to the claim.

(e)                The contention that Ordnance Survey data can be freely downloaded from other sources: paragraph 61 of the Amended Defence is vague on the details, but the claimants' evidence shows that any downloading of Digimaps would have encountered the terms and conditions referred to above. There is a free service called Get-a-map, but this is limited to ten copies of each mapping image and to personal, non-commercial use. There is again no evidence which comes anywhere near showing that either the Digimaps or the data contained in them were "freely available". The defendant's case that what it did was "by implication" authorised is in my view unarguable.

26.               For these reasons, I consider that the claimants are right to say that the defendant has no arguable defence to the claim, and I therefore propose to dismiss the defendant's applications and to give judgment in default of defence.  I will hear the parties on the appropriate form of the order

N.Strauss Q.C.

Deputy judge

5^th Nov.2007