A 48-page court judgment in litigation between Ordnance Survey and a geospatial data start-up is likely to become a landmark in the long running controversy over the re-use in commercial products of data derived from public sector datasets.
Although the headline finding in 77m v Ordnance Survey is a victory for the mapping agency and the GeoPlace partnership with the Local Government Association, 77m won on three points.
In particular, the judgment will give ammunition to businesses wishing to re-use datasets created under the EU INSPIRE directive and those published under the Open Government Licence.
The litigation began in 2016 when 77m, a small business registered in Surrey, sought a declaration from Ordnance Survey that a product called Matrix, which contains some 28 million residential and non-residential addresses, did not infringe any Ordnance Survey intellectual property rights.
OS responded with a defence and a counterclaim, claiming infringement of both copyright and database rights. The case was transferred from the Intellectual Property Enterprise Court to the High Court, where it was heard last summer by one of England and Wales' most experienced patents judges, Sir Colin Birss (Mr Justice Birss).
In a judgment handed down last Friday, Mr Justice Birss concluded: "Although 77m achieved a measure of success, the winning parties in this case are the claimants on the counterclaim, Ordnance Survey and GeoPlace." In particular, he ruled that: 77m had breached the terms of a deal known as A1 Match, under which HM Land Registry provided property descriptions for 910,000 features; that 77m had scraped 3.5 million addresses from HM Land Registry's Find a Property Service; it had breached a Registers of Scotland licence; and infringed Ordnance Survey's database rights held in its MasterMap Topography Layer.
However, in a significant ruling for data re-use, Mr Justice Birrs said that 77m had not breached the download terms of a database of 28 million polygons made available to comply with the EU INSPIRE (Infrastructure for Spatial Information) directive, which came into force in 2007. The polygons are based on OS MasterMap data.
Much of the legal argument centred on whether the phrase "internal business use" in the standard INSPIRE download terms covered use for developing a product. OS said the geospatial community would understand these terms as applying only to the internal operation of a company.
But the judge said the terms of the Open Government Licence does not say anything about the sale of a product or service based on the polygons but which does not include them as such. Therefore "I find that in doing this 77m was operating within the INSPIRE download terms," he said.
He also backed 77m's argument in OS's claim over a dataset of 54,000 records made available by Lichfield District Council as part of an open data initiative.
Dismissing OS's claim that 77m should have approached it as the originator of the data the council made available, the judge said "it would be reasonable for a third party to rely" on the fact that the Lichfield data was made available to the public on a gov.uk website. He found that the Open Government Licence "permitted 77m to do what it did with that data".
Open data blogger Owen Boswarva said in a post that the judgment has significant implications for public authorities that use Ordnance Survey data under the Public Sector Mapping Agreement.
"Basically the court decided that although the Lichfield datasets contained Ordnance Survey data that had not been approved for release as open data under OS's Presumption to Publish process (and indeed would probably not have been approved for release), users who downloaded the datasets were entitled to rely on a reasonable assumption that Lichfield had authority to license OS's IP for re-use as well as its own."
While this principle will not necessarily extend to examples where the data contains third party IP from outside government, "where all of the IP is owned by UK public bodies it reduces the risk for re-users by placing the onus on those public bodies to sort out any errors of authority among themselves", Boswarva said.
In a statement, Ordnance Survey and GeoPlace welcomed the court’s decision, which they said "recognises and confirms the value of intellectual property rights, in particular database rights, in OS and GeoPlace data". In particular, they noted the judge's finding that the £6 million a year spent on maintaining the National Address Gazetteer creates a database right in law.
Although not directly binding on other courts, the High Court judgment is an important addition to the case law surrounding the re-use of public sector data. Start-ups and public bodies alike will read it with interest - especially if they want to avoid the courts in future.
After the judgement, 77m said it can produce a royalty-free product safe in the knowledge that the data is correctly licensed.
Image: Royal Courts of Justice by Wei-Te Wong, CC BY-SA 2.0
Final paragraph amended on afternoon of 12/11/19 on clarification of 77m's response