Controller of HM Stationery Office & Anor v Green AMPS Ltd

This is the oral renewal of an application for permission to appeal by Green Amps Limited, who are represented by their director, Mr Brown, against an order dated 5 November 2007 made by Mr Nicholas Strauss QC, sitting as a deputy judge at the Chancery Division of the High Court, in proceedings brought against Green Amps Limited by the controller of Her Majesty’s Stationery Office as first claimant and the Ordnance Survey as the second claimant. The proceedings concerned copyright in Ordnance Survey mapping data. The judge’s judgment is available and can be taken as read. He deals with the basic situation and, relevantly for present purposes, there are only a couple of corrections that need to be made on factual matters, which I will come to.

Green Amps is in the business of renewable energy. It has become interested in the use of maps for the purposes of planning applications in order to establish the use of sites for renewable energy purposes. Mr Brown says that in practice one cannot make a planning application without the use of an Ordnance Survey-based map. His company downloaded the entire Ordnance Survey data set, for purposes in connection with a device, if I can use that as a rather general word, called the Mapping Tool, a geographic information system, as the judge described it, ultimately to be used in planning applications for wind turbines, essentially, it is said, in correlating the different mapping layers incorporated in the environmental statements which form part of such applications.

The Ordnance Survey came to be aware that Green Amps had downloaded this material. The judge describes the circumstances in which Green Amps did it and I need not go into detail about that. The judge described that process as being “covert”, in the sense that it was done using a facility which would or might have been available to a student for educational purposes. The student worked for a time for the defendant and the fact that he used a computer of the defendant’s for this purpose meant that the defendant was then able to do the same, but the judge says that in order to download the material the defendant would have seen on the screen the claimant’s copyright terms and conditions and would have had to have clicked on an icon agreeing to the terms and conditions, limiting the access to that particular service in a way which would not include -- certainly could not readily be understood to include -- the defendant’s business purposes.

Mr Brown takes issue with the question of “covert”, not so much because he takes issue as to the way in which it was done in the first place but because he says that he, as it were, came clean promptly and readily as to what had happened. That I will assume in his favour. Once HMSO and Ordnance Survey had become aware of what had happened, they started these proceedings. The defendant put in a defence and later amended the defence. Notwithstanding that, the claimants applied for judgment under Part 24 on the basis that the defence’s original and amended defences afforded no arguable defence to the claim. The claim is for breach of copyright and an injunction restraining further infringement and delivery up of infringing material and an enquiry as to damages. The enquiry as to damages may be insignificant because Mr Brown says no commercial use has been made of the material as yet and indeed he says that no such is intended.

Mr Brown relies in part on the Reuse of Public Sector Information Regulations 2005, on which he made submissions to the judge. Those regulations do set up a regime under which public sector bodies are to make available for general use material which they generate or which they hold for purposes within the public task for which a document was produced. Under Regulation 6 a person may make a request for re-use of material. Mr Brown tells me that such a request has been made but only since the hearing and therefore it is irrelevant for the purposes of deciding whether the judge was right to grant summary judgment. It could be relevant for the future, but as regards to rights established as of the date of the judgment it is not relevant.

What Mr Brown goes on to say is that he takes issue in a major way with Ordnance Survey’s charging scheme and policy. Regulation 15 makes it clear that a public sector body may charge for allowing re-use but sets out limits as to the total income from the charge and as to the principle on which charges for re-use shall be calculated and makes various other provisions of that kind. The regulations also require public sector bodies to establish complaints procedures for determining complaints relating to their actions which would include their charging policies. If such a complaint is either not dealt with within a reasonable time or is not dealt with to the satisfaction of the complainant then there is a further process whereby the complaint may be referred either to the Office of Public Sector Information or, if necessary, to the Advisory Panel on Public Sector Information. Mr Brown says that such a complaint has been made and it has been referred to the Advisory Panel on Public Sector Information because the Office of Public Sector Information was deemed to be connected with HMSO.

Those regulations say nothing about the court. No doubt if any of the public sector bodies involved fails to perform its duties properly, it might be susceptible to proceedings for judicial review, at any rate if the complaints and the review procedures set out in Regulation 17-21 had been used but had been found to be inadequate, not being properly applied. Those regulations, however, do not provide a defence to the claim for breach of copyright because they do not give Green Amps the right which they have wanted to exercise, and which they claim to be entitled to exercise, to download the material in the way that they did and to make use of it in the way that they have. There may be all sorts of proceedings by virtue of the regulations in due course, but they do not provide a defence to this claim. They do not render what Green Amps did other than an infringement of copyright.

Mr Brown’s next and different argument, which the judge also considered, is based on two provisions of the Copyright, Designs and Patents Act 1988. Section 29(1) provides that fair dealing with a literary, dramatic, music or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in a work provided that it is accompanied by sufficient acknowledgment.

The judge rejected reliance on this for two reasons. He held that the research was plainly not for a non-commercial purpose. He dealt with this at paragraphs 21 to 23 of his judgment and in particular, in paragraph 22, he quotes a passage from the amended defence, that is to say:

“Hitherto the Mapping System has been in ‘development’ mode and although real-life site data has been used for testing no commercial use has yet been made (the judge’s emphasis) for in-house activity.

In due course a number of planning applications… for (the defendant’s) wind turbine deployment will be filed, and clearly attached to those applications will be Environmental Statements, in turn containing mapping data…”

The judge says these passages in the document and others demonstrate that this is a commercial company and even if its use of the map and data so far has been for research, that research is for commercial purposes. Mr Brown submits that that is wrong for two reasons, and one in particular. He says that the development of the mapping tool is not and was not intended to be for profit and he relies on Recital 42 to the directive, 2001/29EC on 12 May 2001, on Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, which I apprehend led to the enactment of the Copyright and Related Rights Regulations 2003 which introduced the new Section 29(1).

Recital 42 says that when applying the exceptional limitation for non-commercial application on scientific research purposes, including distance learning, the non-commercial nature of the activity in question should be determined by that activity as such. The organisational structure and the means of funding for the establishment concerned are not the decisive factors in this respect. One can see the sense of that and it can be cut both ways. One could have an educational establishment which is undertaking research for commercial purposes but equally, Mr Brown submits, one could have a commercial establishment that is undertaking research for non-commercial purposes. I am prepared to assume for present purposes that he has an arguable point on that.

So far as fair dealing is concerned, the judge dealt with that at paragraph 24. He says that fair dealing is to be judged by an objective standard, namely whether a fair-minded and honest person would have dealt with the copyright work in the manner in which the defendant did. He gave three reasons for holding that it was not fair dealing. One was what he referred to as the “covert” manner in which the information was downloaded. I have mentioned that and I have mentioned the criticism Mr Brown makes of the word “covert”, not strictly with regards to the downloading but at any rate as to coming clean soon afterwards.

The judge mentions two other matters, one of which is the question of competition with the exploitation of the copyright work by the owner. Mr Brown submits this is really not in point at all and it is fair to say that, when the judge gave his reasons for refusing permission to appeal, he accepted that he was wrong to say that the infringement included competition of the claimant, but he said that that still did not result in an arguable defence under Section 29. The remaining factor was the extent and importance of the copying. As to that, Mr Brown says, frankly, that downloading the entire dataset might at first sight seem excessive, but really it was unavoidable and that it was a way of coping with what he says was a historically strict mode of operation of the Stationery Office. As he said, and I paraphrase his words, “We decided to get the data and argue about the terms of the licence afterwards”. In my judgment the judge was plainly right to hold that that would not come within a defence of fair dealing. If it did, of course it would entitle Green Amps to use the material without any licence. That seems to me to be plainly unarguable.

It is not strictly necessary then to go on to the last point, which is that, as I have mentioned, Mr Brown says that if and when the material came to be used for planning applications, that would come within section 45 under which copyright is not infringed by anything done for the purposes of judicial proceedings. Judicial proceedings are defined in section 178, as including: “proceedings before any court, tribunal or person having authority to decide any matter affecting a person’s legal rights or liabilities” and Mr Brown says that a planning committee, and of course even more so a planning inspector if it got to that, is at least a quasi-judicial tribunal determining parties’ rights.

I would accept that at any rate some aspects of the planning process have been said to be quasi-judicial, in the sense, for example, that it is essential to observe the rules of natural justice, but I would not accept that use for the purposes of a planning application is use for judicial proceedings because whether or not an applicant with planning permission should be granted a right to undertake a particular development of whatever kind may be relevant, is, in my judgment, plainly not a question of deciding any matter affecting a person’s legal rights or liabilities. It is a question of dealing with additional facilities or entitlements. It is not a question of deciding whether someone has a legal right or liability but rather of whether they should be granted a right to undertake a particular activity.

Accordingly, for all those reasons, I am satisfied that despite one error in paragraph 24 of his judgment, which he acknowledged himself, the judge was right to grant summary judgment to the claimants. I would grant an extension of time but the stay of execution will not be continued and I refuse permission to appeal.