Controller of HM Stationery Office & Anor v Green AMPS Ltd

The Reuse of Public Sector Information Regulations 2005 do not create a defence to copyright infringement or authorise downloading and use that would otherwise infringe copyright. A complaint about access or charges, and any resulting public-law remedy, is a separate matter. Under the Copyright, Designs and Patents Act 1988, fair dealing for research is assessed objectively. Although the non-commercial character of the research was arguable, downloading an entire dataset for intended unlicensed use was plainly not fair dealing. The judicial-proceedings exception does not extend to use in a planning application, since planning permission concerns the grant of an entitlement rather than determination of legal rights or liabilities.

HMSO and Ordnance Survey sued Green Amps Ltd for copyright infringement after it downloaded the entire Ordnance Survey mapping dataset for a mapping tool connected with renewable-energy planning applications. The claimants sought summary judgment under Part 24, together with an injunction, delivery up of infringing material and an inquiry as to damages. Mr Nicholas Strauss QC, sitting as deputy judge in the Chancery Division, granted summary judgment by an order dated 5 November 2007.

On oral renewal of its application for permission to appeal, Green Amps relied on the Reuse of Public Sector Information Regulations 2005, the research fair-dealing exception in section 29(1) of the Copyright, Designs and Patents Act 1988, and the judicial-proceedings exception in sections 45 and 178. The central issue was whether any of those provisions supplied an arguable defence to the copyright claim.

Lord Justice Lloyd refused permission to appeal and upheld the grant of summary judgment.

1. Public-sector information regime. The Reuse of Public Sector Information Regulations 2005 establish procedures for requesting re-use, regulating charges and making complaints. A request made after the hearing could be relevant to future rights, but not to rights established when judgment was entered. The Regulations did not confer a right to download and use the material in the manner adopted, and therefore did not provide a defence to copyright infringement. They might support separate proceedings, potentially including judicial review, if the statutory procedures were inadequately performed.
2. Research and fair dealing. The court assumed that Green Amps had an arguable point that the research might be non-commercial, because the character of the activity itself could be relevant rather than the company’s organisational structure or funding. Fair dealing was nevertheless to be judged objectively, by considering whether a fair-minded and honest person would have dealt with the work in that manner. The judge had been wrong to treat competition with the copyright owner as a relevant reason. That error did not affect the result. The covert downloading and, in particular, copying the entire dataset for intended use without a licence made a fair-dealing defence plainly unarguable.
3. Planning applications. It was not strictly necessary to decide the point, but use of the material for a planning application did not fall within the judicial-proceedings exception in sections 45 and 178. Although parts of the planning process may be quasi-judicial, deciding whether permission should be granted concerns the conferral of an entitlement, not a determination of legal rights or liabilities.

An extension of time was granted. The stay of execution and stay of costs were refused.

• Court of Appeal (Civil Division): On oral renewal, permission to appeal was refused. An extension of time was granted, but the stays were refused. The High Court’s summary judgment was upheld.
• High Court of Justice, Chancery Division: Mr Nicholas Strauss QC, sitting as deputy judge, granted the claimants summary judgment on their copyright infringement claim by order dated 5 November 2007.