Crown copyright - a valuable estate. Dr Peter Groves Author of the Ipso Jure intellectual property blog

Government departments and agencies of various sorts have had a well-developed, some might say extravagant, appreciation of the value of copyright for some years. Crown copyright is a valuable estate, though acknowledging that undoubted fact is not to say that it must be ruthlessly exploited. Other countries, such as the United States, treat government publications liberally on the basis that the public has paid for the works to be created through the tax system and should not have to pay again to use the products.

However, I should not complain as my copyright courses have been well-patronised over the years by delegates from the Driver Standards Agency (publishers of the Highway Code), the Hydrographic Office and its dry land equivalent, the Ordnance Survey. And the Ordnance Survey has also put in several appearances in the courts (though not, I hasten to add, with my help).

Most recently, Court of Appeal threw out some interesting defences against an infringement action in The Controller of Her Majesty's Stationery Office and Ordnance Survey v Green Amps Limited [2008] EWCA 588. Ordnance Survey maps - and the OS has a pretty effective monopoly of mapping data for the UK, as to recreate what it has been working on since the Napoleonic Wars would take quite a lot of time and effort - are protected by Crown copyright, which is administered by the Controller of HMSO. The power to licence the use of these copyright works is delegated to the OS, which is also empowered to bring proceedings for infringement.

The OS licences customers to use its digital mapping products and also provides data for a service called EDINA, which provides a database to the tertiary education and research sectors. The defendants employed a student during the vacation, and while working for them he used EDINA for course work and for the tasks Green Amps asked him to perform.

At the end of the vacation he went back to university but left his user name and password saved on the computer he had been using. The company availed itself of this oversight and downloaded digital maps free of charge. It used them to produce a "mapping tool" which it used in planning applications for wind farms.

At first instance, the deputy judge (Mr N Strauss QC) gave judgment in default, the defendants having served no defence and the deputy judge taking the view that there was none. The defendant sought leave to appeal, raising possible defences sme of which seem to smack of desperation. Lloyd LJ, the sole judge in the Court of Appeal, refused leave, and in doing so clarified soe important points about the defences that Green Amps wanted to run.

First, Green Amps argued that the supply of maps fell within the OS's "public task" so that the Re-use of Public Sector Information Regulations 2005 (SI No 1515) applied and it could charge for the cost or reproducing the maps plus a reasonable return. Lloyd LJ said that the regulations did not disclose a defence to copyright infringement: they meant that a public-sector body would be subject to judicial review if it failed to perform its duties properly, but that was a completely different matter.

Second, Green Amps's work could be regarded as research under section 29 of the Copyright, Designs and Patents Act 1988, and even though it was for ultimately commercial purposes it was the research activity itself that had to be considered rather than the structure of the organisation doing it and the way it was funded (referring to Directive 2001/29/EC). But the deputy judge had been quite right to hold that the extent ad importance of the copying meant that it could not possibly be considered fair dealing.

Third, the defendant's work was for a process that was in part at least semi-judicial, but that did not mean that use for the purposes of a planning application was use for judicial proceedings (and therefore permitted by section 45 of the 1988 Act). The planning process was concerned not with whether a person had a legal right or liability, but whether they should be granted a right to undertake a particular activity. As section 45 has rarely featured in reported cases (four on Westlaw, including the first instance judgment in this case) and has never before been considered by the Court of Appeal, this is useful clarification.

The moral is that the exceptions to copyright are not usually as extensive as they first appear. It seems trite to say it, but if there is any doubt about whether an act is permitted by the legislation, that probably means that a licence is needed – though what Green Amps were up to did, as they presumably knew full well, need one.