Controller of HM Stationery Office & Anor v Green Amps Ltd

Copyright in public-sector information is not displaced merely because a user considers the information publicly available or believes that charges exceed the lawful amount. The Re-use of Public Sector Information Regulations 2005 regulate charging and provide complaint and review mechanisms; they do not confer a right to use the information without permission. Research undertaken by a commercial company for an intended commercial application is not research for a non-commercial purpose under section 29 of the Copyright, Designs and Patents Act 1988. Fair dealing is assessed objectively. Competition with the copyright owner’s exploitation, extensive copying and covert downloading may make the defence unarguable.

The claimants sought judgment in default in a Crown copyright infringement claim. The defendant had served a Defence and Amended Defence out of time, but the claimants did not rely on the delay. They argued that neither pleading disclosed an arguable defence.

The defendant had used cached university credentials to access and download Ordnance Survey digital mapping without permission or payment. It relied principally on the Re-use of Public Sector Information Regulations 2005, section 29 of the Copyright, Designs and Patents Act 1988, freedom of information, planning requirements and implied authorisation. The central issues were whether the Regulations permitted free use or restricted the claimants’ charges, and whether the copying was protected as fair dealing for non-commercial research.

1. Disposition. The defendant’s applications were dismissed and judgment in default of defence was ordered. The court held that no arguable defence was disclosed.
2. Re-use charges. Assuming that the claimants’ mapping activity fell within their public task, paragraph 15 of the Re-use of Public Sector Information Regulations 2005, read with article 6 of Directive 2003/98/EC, permitted charges based on expenditure incurred in collecting information, mapping and producing the end product, together with a reasonable return on investment. The defendant’s narrower construction ignored the references to collection, production and investment. If the activity fell outside the public task, the service was an ordinary commercial activity unaffected by the Regulations.
3. The Regulations did not give members of the public a right to use information free of charge, even if a public body had charged more than permitted. They provided complaint and review procedures through the public sector information authorities.
4. Research exception. Section 29 of the Copyright, Designs and Patents Act 1988 required both research and a non-commercial purpose. The defendant’s mapping tool formed part of a commercial toolkit intended to support the deployment of its wind turbines. Its research therefore had a commercial purpose and could not benefit from the exception.
5. Fair dealing. Fair dealing was an objective question, assessed by asking whether a fair-minded and honest person would have dealt with the work in the same manner. Competition with the copyright owner’s exploitation, the scale and importance of the copying, and the covert downloading all pointed decisively against fairness. The alleged copying was consequently unarguable as fair dealing.
6. The remaining arguments, including reliance on freedom of information, planning practice, government support, public benefit, other sources and implied authorisation, did not provide a defence to unauthorised downloading.

First-instance decision. No prior appellate decision is stated in the judgment.