A recent case from the Court of Appeal concerning infringement of Crown copyright in Ordnance Survey (OS) mapping data, highlights the importance of ensuring that appropriate licences are in place before undertaking work on third parties' copyright material.
Green Amps Limited (Green Amps), a windfarm business, has been embroiled in a court battle with Her Majesty's Stationery Office (HMSO) and OS over the right to use government produced mapping data. The Court of Appeal has upheld the High Court's decision requiring Green Amps to stop infringing Crown copyright without a licence. The courts held there was no defence to infringement of copyright based on section 29(1) of the Copyright, Designs and Patents Act 1988 (CDPA), which provides an exception for "research", as the use of the data was not for research but ultimately for commercial purposes. The courts also rejected an argument that use of OS data for planning applications constituted use in judicial proceedings under section 45 of the CDPA. They also held that the Re-Use of Public Sector Information Regulations (Regulations), (which govern the re-use by third parties of documents held by UK public bodies, the procedure for granting licences by such bodies and the fees they can charge for such licences) did not provide a defence to infringement of copyright, because the OS was entitled to charge for the supply of the maps under a licence. This article examines the Court's reasoning and shows that it took a commercial and pragmatic stance when interpreting the above legislation.
Green Amps was trying to develop software to streamline windfarm planning applications. To do this it downloaded the entire OS data set to create a mapping tool. The mapping tool created correlates the different mapping layers contained in the environmental statements which form part of a windfarm planning application. The method by which Green Amps downloaded the material without a licence caused the courts alarm. The courts even described it as being “covert”. During the summer holidays Green Amp employed a student, who had password details to use his university’s licence for the OS system for non-commercial research only. However, after the student left, his password details remained on Green Amps’ computers. Green Amps was then able to download mapping data for free from the OS system without the OS’ and HMSO’s permission.
When the OS became aware of the copyright infringement, they offered Green Amps a commercial licence to download the material for £16,000. Nick Brown, the chief executive of Green Amps, rejected this and tried to negotiate a non-commercial licence. Mr Brown, who also represented Green Amps, argued that non-personal government data should be available for re-use for free. In the High Court he even claimed a “God-given right of access” to OS maps, although he tried to substantiate this by focusing on the re-use Regulations.
The Court of Appeal's reasoning in dismissing the appeal was as follows:
CDPA Section 29(1)
For there to be a defence to an act of infringement, the copy must be “for the purpose of research”, and that research should be “for a non-commercial purpose”. It was held that the second of these requirements was not satisfied because the end goal of Green Amps was to make use of the OS data in a commercial manner. Further, it was held that Green Amps’ actions could not be fair dealing, considering, the “covertness” and the extent of the copying.
CDPA Section 45
Mr Brown contended that because the OS materials would be used for planning applications, it would not infringe copyright because it was for the purpose of judicial proceedings. Mr Brown stated that a planning committee is a quasi-judicial tribunal determining parties’ rights. However, the courts did not agree. While accepting that some of the planning system is quasi-judicial, a planning application is not a judicial proceeding because it is not deciding a person’s legal rights or liabilities. (For example an applicant does not have a legal right to undertake a particular development.) It should be noted that when a planning application is determined at a public inquiry or the decision gets passed to judicial review, an applicant could copy OS maps for that purpose.
Re-use of Public Sector Information Regulations 2005
As stated above, the Regulations govern the re-use by third parties of documents held by UK public bodies, the procedure for granting licences for such use, and how much they can charge. The supply of OS maps was held to fall within the "public task" of the OS and so it was entitled to charge for their re-use. Regulation 15 sets out how licence fees will be determined, and that they must not exceed a reasonable return on investment by the public body. The OS licence for proposed re-use was not excessive due to the expenditure incurred in producing the maps. Further, the Regulations did not give Green Amps a defence for breach of copyright.
The courts also dismissed other arguments by Mr Brown. One such argument was that OS maps are indispensable to planning applications but this was dismissed as the use of OS maps is not a mandatory requirement of the planning process, and even if it were mandatory, it would not be a defence to infringement. The courts spent no time considering his proposition of a "greater good" defence (Green Amps should be excused because its actions assist in the fight against global warming) or that charges for the use of essential data are a breach of human rights.
This case clearly emphasises the need for businesses to have the appropriate licences in place before using third parties' copyright material. If not they could face legal action. It also raises interesting points regarding the Regulations and the application of the judicial proceedings defence, as well as providing a glimpse of things to come in the debate over charges for public sector information.