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Tuesday, 17 February 2004

LLOYD J - FIRST CLASS MAIL

The Lawtel subscription service notes a rare decision on database right, Royal Mail Group Plc v I-CD Publishing (UK) Ltd, a Chancery Division decision of Mr Justice Lloyd last Friday. This was the trial of a preliminary issue as to whether I-CD had a licence-based defence to Royal Mail's http://www.royalmail.com/portal/rm allegations of infringement of database rights. Royal Mail had a statutory duty under the Postal Services Act 2000 s.161 (i) to maintain a "postcode address file" (PAF) which included 27 million postal address records and 1.7 million postcodes and (ii) to license it on reasonable terms. I-CD provided "UK info" products, the aim of which was to provide a complete directory of everyone of voting age in the UK. When preparing each version of "UK info", the underlying database was PAF-validated (PAF validation being the comparison and correction of an existing mailing list against the PAF database) by various licensees of Royal Mail who were end users. Royal Mail alleged I-CD infringed its database rights and copyright. I-CD's defence was based upon the proviso to clause 3.1 of Royal Mail's end user licence terms. That clause provided that nothing in it prevented end users using the PAF to modify existing mailing list databases. On this basis, I-CD argued, PAF validation of the electoral roll database included in certain versions of its "UK info" directory was licensed. Royal Mail disagreed and argued that a list created for subsequent processing was not an "existing mailing list" and that, to fall within that phrase, a database had to have been compiled primarily as a mailing list at the time it was provided to the end user, not used for some other purpose. I-CD contended that any database with names and addresses was a mailing list database and that data derived from electoral rolls formed the basis of many address services available.

Lloyd J held that I-CD’s PAF validation was licensed. Clause 3.1 sought to strike a balance between limiting the use that could be made of Royal Mail's IP and allowing that IP to be used so as to encourage the updating of mailing lists. If “mailing list database” was not construed to include all names and addresses, the meaning and ambit of that phrase in the clause would make the proviso unworkable.

The IPKat thinks the basis on which Lloyd J reached his decision is unclear. Was it just because the proviso to Clause 3.1 would be "unworkable" if the opposite conclusion were reached? If so, it is difficult to see why it should be unworkable: all that would be needed to make it work would be the payment of licence fees to Royal Mail. Or was it the result of interpreting the licence provisions contra proferentem? When a transcript of this decision comes to light, we shall all be the wiser for it.

Royal mail here and here
Royal males here and here

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