77m Ltd v Ordnance Survey Ltd

Database right protects investment in obtaining, verifying or presenting the contents of a database, but does not protect mere facts as such. Consultation of a publicly accessible database is distinct from extraction. Wholesale or large-scale transfer of contents into another medium may constitute extraction even where the transferred data is temporarily stored and later discarded.

Contractual permissions must be construed objectively. A licence permitting internal use may allow a licensee to create and commercially supply a product derived from the licensed data, provided the licensed data or associated geometry is not supplied to third parties. A permission limited to internal modelling does not authorise wholesale use of data to create a competing commercial dataset.

77m Limited created Matrix, a geospatial address dataset, using data obtained from Ordnance Survey-related sources, HM Land Registry, Registers of Scotland and Lichfield District Council. Ordnance Survey claimed infringement of database rights in the OS MasterMap Topography Layer and AddressBase-related databases. The dispute also concerned the construction of the INSPIRE Download Terms, the A1 Match Licence, the Find a Property terms and the RoS Land Values Licence.

77m sought declarations of lawful use and denied infringement. Ordnance Survey and GeoPlace brought a counterclaim, and 77m alleged that Ordnance Survey procured HM Land Registry to breach the A1 Match Licence. The central issues were the scope of the licences, whether the relevant acts were extraction or mere consultation, whether statutory database-right defences applied, and whether the tort of procuring breach of contract was established.

1. INSPIRE Download Terms. The terms permitted 77m to use the INSPIRE polygons internally, including to develop products or services for resale. They did not permit 77m to supply the polygons or their associated geometry to third parties. The expression associated geometry referred to the existing x,y coordinates defining the polygons, not derived data such as centroids, areas or other calculated information. 77m’s use of the polygons and derived data was therefore authorised.
2. A1 Match Licence and FAP. The A1 Match Licence obliged HM Land Registry to provide matching services in response to future requests. However, the permitted use was confined to identifying non-addressable sites or garbage polygons. Using addressable A1 descriptions to create anchor points and geolocate 77m’s own address database exceeded that permission. The FAP-specific terms applied to both registered and unregistered use of the service. Automated scraping was prohibited, and approximately 3.5 million records had been obtained by scraping.
3. RoS Land Values Licence. The licence permitted use of house price and house type data for a web service, and use of other data for internal modelling necessary to develop that service. It did not permit wholesale use of centroids and addresses to create a new geolocation dataset.
4. Database right. The temporary transfer of centroids into computer memory while processing them to identify the nearest cadastral seed point was extraction. The scale of the activity placed it on the extraction side of the distinction from consultation. Matching millions of A1 and FAP addresses against the Master Address List likewise involved extraction. The relevant addresses formed a substantial part of the NAG and the centroids formed a substantial part of Topo.
5. Defences. The statutory defences in paragraph 3 of Schedule 1 to the Copyright and Rights in Databases Regulations 1997 depend on the contents used, the appropriate person and the authority given for the particular act of extraction or re-utilisation. The defence in paragraph 3(1) applied to approximately 480,000 addresses manually obtained from FAP because HM Land Registry authorised their commercial use. It did not apply to the unlicensed matching, scraping or centroid processing.
6. Procuring breach. The elements identified in OBG Ltd v Allan were not all established within the pleaded period. Although Ordnance Survey induced HM Land Registry to stop supplying the seventh response file in 2015, Ordnance Survey did not then know the relevant contractual terms. Later inaction did not amount to procurement. The claim therefore failed.
7. The infringement claims concerning INSPIRE polygons and derived data failed. The claims concerning the unauthorised centroid processing, A1 matching and scraping succeeded, subject to the manual FAP defence. The claim for procuring breach of contract failed.

First-instance decision in the High Court (Chancery Division). No earlier decision in the same proceedings is stated in the judgment.