77m Ltd v Ordnance Survey Ltd is an English case about the limits of data licences. 77m created Matrix, a dataset of about 28 million records giving geospatial coordinates for every residential and non-residential address in Great Britain, intended to compete directly with Ordnance Survey’s AddressBase. 77m did not license AddressBase. Instead it combined data from at least 18 sources, some free and some paid for, including datasets from HM Land Registry (HMLR) and Registers of Scotland (RoS) that derived in part from Ordnance Survey (OS) data. The court held that 77m had exceeded several of those licences and infringed OS database rights.[1]
Background
OS is the national mapping agency of Great Britain. It is required to license its products on a non-discriminatory basis, making some datasets available free under the Open Government Licence and others on commercial terms. Before 2015 its databases vested in the Crown; since 1 April 2015 OS has been a government-owned company holding rights under Crown rights agreements.[1]
77m obtained data under several licences: the INSPIRE Download Terms for HMLR land parcel polygons, an “A1 Match” licence under which HMLR supplied property descriptions for INSPIRE IDs that 77m submitted, the terms of HMLR’s Find a Property service, and an RoS Land Values licence.[1]
The dispute
77m sought declarations that Matrix did not infringe OS’s rights and claimed that OS had procured HMLR to break its contract with 77m. OS and GeoPlace counterclaimed for infringement of database rights in OS’s topographic database and in the national address databases behind AddressBase, arguing that 77m’s use of the licensed data went beyond what the licences allowed.[1]
Decision or outcome
Mr Justice Birss concluded:[1]
- INSPIRE polygons: within the licence. 77m’s internal use of the polygons was authorised, and the restriction on supplying “associated geometry” covered the x,y coordinates of the polygons themselves, not data derived from them such as centroids.
- A1 Match licence: breached. The permitted use was a single purpose disclosed to HMLR, cleansing non-addressable sites. 77m also used the address links to geolocate its own address list, which the licence did not permit, and the court rejected the argument that exceeding a licence’s permission has no contractual consequence.
- Scraping: breached. About 3.5 million addresses were obtained from HMLR’s Find a Property service by an automated tool, in breach of the applicable terms. About 480,000 addresses downloaded manually fell within the authorised extraction defence.
- RoS Land Values licence: breached by 77m’s use of centroids.
- Database right infringed. The use of the RoS centroids and of the HMLR addresses obtained through the A1 Match licence and scraping infringed database rights held by OS and GeoPlace. No estoppel arose, and the claim for procuring breach of contract failed.
The judge described OS and GeoPlace as the winning parties, although 77m achieved a measure of success.[1]
Significance for software licensing and SAM practice
Data and API licences increasingly sit alongside software licences, and their permitted-use clauses define what a licensee may build. This case shows a court reading such a clause as limited to the purpose disclosed to the licensor, treating scraping in breach of service terms as unlicensed, and allowing the original rights holder to enforce its rights against a downstream licensee.[1]
Lessons learned
- Permitted-use clauses in data licences are enforceable: using licensed data for a purpose beyond the one stated is a breach. 77m’s use of A1 Match data to geolocate addresses went beyond the cleansing purpose.[1]
- Data obtained by scraping a service in breach of its terms is unlicensed, and so is anything built from it. The 3.5 million scraped records were obtained in breach of the terms, and their use in Matrix was unlicensed.[1]
- Rights holders upstream of your licensor can enforce their own rights if you exceed the licence you were given. OS succeeded on database right although 77m’s contracts were with HMLR and RoS.[1]
- How a restriction is worded matters: data derived from licensed material was outside one licence’s restriction but inside another’s. Centroids derived from INSPIRE polygons were permitted, while the use of RoS centroids breached the RoS licence.[1]