It was not an abuse of Ordnance Survey’s dominant position in the UK map market, built up with the aid of public funding, for OS to set up a one-stop shop web site for the supply of digital aerial imagery.
If you go to www.getmapping.com/ and type in your postcode the chances are you will find an aerial photograph of your home and surrounding streets. This is because Getmapping Plc has overflown and made a digital image of the whole of England and Wales and much of Scotland and Northern Ireland.
Ordnance Survey is the government department responsible for the mapping of Great Britain. It has been operating on a commercial basis as a Trading Fund since 1999. OS has a digital map of the whole of Great Britain. It is creating a new product (OS MasterMap) which allows customers to combine the topographic information in the digital map with other layers of information including digital colour imagery such as Getmapping’s photographs. OS’s planes are in the process of creating OS’s own giant digital colour photograph of Britain. In the meantime, some of the visual layer within MasterMap is being licensed in from companies such as Getmapping.
In 1999 Getmapping and OS entered into a ‘Representative Agreement’ under which OS agreed to pass on orders for Getmapping products from its customers in return for a commission. Discussions took place with a view to Getmapping supplying imagery for use by OS in MasterMap. The current proceedings arose out of OS’s subsequent decision to develop its own imagery and to put out to open tender the supply of the visual imagery it would need in the meantime.
Despite its objections to the tender process, Getmapping participated and is apparently likely to be offered a contract to supply photography of around 40% of Britain to OS. The rest will come from other sources because OS has opted for one kind of photography (‘orthorectified’) and much of Getmapping’s photography is of another kind (‘georectified’).
Getmapping’s legal claims fall under three headings. First, the OS one-stop shop including OS’s own imagery would constitute a breach of confidence. Second, it would breach an implied term not to compete. Finally, OS has abused its dominant position in the supply of maps by setting up the one-stop shop, by entering into competition with Getmapping by supplying its own colour photography and by choosing to limit the photography it uses to orthorectifed imagery.
Mr Justice’s Laddie’s judgment on 31 May related to an application by Getmapping for an interim injunction requiring OS to place Getmapping’s geocorrected images on the OS website so that users of that site could see and obtain Getmapping’s images. Alternatively, as a fall back, Getmapping sought an order requiring OS to put prominent links on its website to Getmapping’s site.
In this application, Getmapping concentrated its fire on the allegation that OS had abused its dominant position by cross-subsidising its own imagery from its maps business, using public funds to sell the imagery and using its privileged position in the mapping market to compete unfairly with Getmapping in the imagery market. Mr Justice Laddie decisively rejected the argument; the application for an injunction was therefore refused and the matter will go to speedy trial.
The terms of the judge’s rejection of Getmapping’s arguments will give no comfort at all to the many companies who are faced with competition from expansionist state-backed companies who have a monopoly position in a neighbouring market. According to the judge, so long as the dominant company does not finance its expansion into a new or neighbouring market by demonstrable over-charging in the market it monopolises or acts otherwise in an abusive fashion, its expansion cannot be opposed. This finding probably does reflect the equal treatment accorded to public and private companies under competition law. However, many will feel that this formal equality merely illustrates George Orwell’s dictum that whilst all animals are equal, some are more equal than others.