‘[70] The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose. In UBS AG v Revenue and Customs Comrs[2016] UKSC 13 ;[2016] 1 WLR 1005 , paras 61-68, Lord Reed (with whom the other Justices of the Supreme Court agreed) explained how this approach requires the facts to be analysed in the light of the statutory provision being applied so that if, for example, a fact is of no relevance to the application of the statute construed in the light of its purpose, it can be disregarded. Lord Reed cited the pithy statement of Ribeiro PJ in Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454 , para 35: "The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically."’
‘“database” means a collection of independent works, data or other materials which – (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.’
‘13. (1) A property right (“database right”) subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. (2) For the purposes of paragraph (1) it is immaterial whether or not the database or any of its contents is a copyright work, within the meaning of Part I of the 1988 Act.’
‘“investment” includes any investment, whether of financial, human or technical resources; … “substantial”, in relation to any investment, extraction or re-utilisation, means substantial in terms of quantity or quality or a combination of both.’
‘[25] In accordance with the court’s settled case law, investment in the obtaining of the contents of a database concerns the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials (British Horseracing Board Ltd v William Hill Organisation Ltd (Case C-203/02 ) [2009] Bus LR 932;[2004] ECR I-10415 , para 31 and Fixtures Marketing Ltd v Svenska Spel AB (Case C-338/02 )[2004] ECR I-10497 , para 24). [26] Next, the concept of an investment in the verification of the contents of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation (British Horseracing Board Ltd, para 34). [27] Lastly, investment in the presentation of the contents of the database includes the means of giving that database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility (Fixtures Marketing Ltd v Svenska Spel AB[2004] ECR I-10497 , para 27; Fixtures Marketing Ltd v Organismos Prognostikon Agonon Podosfairou (OPAP) (Case C-444/02 )[2004] ECR I-10549 , para 43 and Fixtures Marketing Ltd v Oy Veikkaus AB (Case C-46/02 )[2004] ECR I-10365 , para 37).’
‘(3) Any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment shall qualify the database resulting from that investment for its own term of protection.’
‘[148] It is characteristic of dynamic databases that there is only ever one database, namely the most recent. Previous versions “disappear”. That raises the question of what the new term of protection covers, in other words, what the object of protection, that is to say, the new one, is. [149] The point of departure must be the objective of the changes, which is to bring the database up to date. That means that the whole database is the object of the new investment. Thus, the most recent version, that is to say, the whole database, is always the object of protection.’
‘The maker of a database is the first owner of database right in it.’
‘(1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database. (2) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.’
‘“extraction”, in relation to any contents of a database, means the permanent or temporary transfer of those contents to another medium by any means or in any form; “insubstantial”, in relation to part of the contents of a database, shall be construed subject to Regulation 16(2); “re-utilisation”, in relation to any contents of a database, means making those contents available to the public by any means; “substantial”, in relation to any investment, extraction or re-utilisation, means substantial in terms of quantity or quality or a combination of both.’
‘[70] The expression “substantial part, evaluated quantitatively”, of the contents of a database within the meaning of Art.7(1) of the directive refers to the volume of data extracted from the database and/or re-utilised, and must be assessed in relation to the volume of the contents of the whole of that database. If a user extracts and/or re-utilises a quantitatively significant part of the contents of a database whose creation required the deployment of substantial resources, the investment in the extracted or re-utilised part is, proportionately, equally substantial. [71] The expression “substantial part, evaluated qualitatively”, of the contents of a database refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. A quantitatively negligible part of the contents of a database may in fact represent, in terms of obtaining, verification or presentation, significant human, technical or financial investment.’
‘… where those acts adversely affect its investment in the obtaining, verification or presentation of that content, namely that they constitute a risk to the possibility of redeeming that investment through the normal operation of the database in question …’
‘[54] However, it must be stressed that the protection of the sui generis [database] right concerns only acts of extraction and re-utilisation as defined in Art.7(2) of the directive. That protection does not, on the other hand, cover consultation of the database. [55] Of course, the maker of a database can reserve exclusive access to his database to himself or reserve access to specific people. However, if he himself makes the contents of his database or a part of it accessible to the public, his sui generis right does not allow him to prevent third parties from consulting that base.’
‘[60] In the light of the above, the answer to the question referred must be that that the transfer of material from a protected database to another database following an on-screen consultation of the first database and an individual assessment of the material contained in that first database is capable of constituting an “extraction”, within the meaning of Art.7 of Directive 96/9 , to the extent that—which it is for the referring court to ascertain—that operation amounts to the transfer of a substantial part, evaluated qualitatively or quantitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents.’
‘[276] In the end I have decided that what 77m have done is not consultation. The reasons are these. What is apt to confuse the issue is that in economic terms what OS is trying to stop is Matrix, but Matrix does not contain the relevant contents (the centroids). Matrix is not the "other medium". The fact that the process which involved the putative act of extraction by 77m of the centroids was ultimately something which led to another database being produced, is irrelevant to the analysis. If what 77m did is an act of extraction that must be true whatever it is 77m went on to do having used the centroids for its purposes and discarded them. This is I think what the court is referring to at [47] of BHB v William Hill. That case also used the term appropriation to refer to extraction, which has been picked up later (see [51]). Moreover while re-utilisation involves making available to the public, extraction does not have to. [277] There may be a simple answer, as follows. In Directmedia at [60] the court refers to on screen consultation. It may be that what the CJEU is talking about there is that a situation in which a person reads the data on a computer screen and does nothing else is consultation. It is not extraction because the only possible "other medium" into which the contents have been transferred is the individual's brain and that is not a relevant sort of medium. If things are written down and then it is done on a large scale then there may be extraction but the act of on screen consultation is not infringing. If that is what the CJEU means then clearly 77m does not do this sort of consultation. However I have misgivings about this way of reading the cases. It is not clear that that is what is meant and, for example, I do not see why consultation by a user themselves sitting by a terminal should be exempt while consultation by a user accessing data through their own device like a mobile phone might not be. [278] 77m is using the centroids from the original database for information purposes in a sense (to draw an inference) and that chimes with the references to consultation in Directmedia and Innoweb . Moreover 77m was given access to the database albeit what 77m then did was not licensed. However what I think deprives 77m's activity of the character of mere consultation is its scale. When a member of the public, or a commercial user, wishes to consult the database to learn something about a particular entry or to learn something about particular entries, they consult the database. By contrast someone who takes all or a substantial part of all the contents, and transfers them into another medium so that they can use them, is appropriating to themselves a substantial part of the investment which went into creating the database. Protecting that investment is what database right is for. That is what 77m did and that is why it is extraction not consultation. There may be a grey area between the sort of commercial consultation I refer to and wholesale activity of the kind carried out by 77m but the scale of 77m's actions puts them firmly on the extraction side of the line.’
‘[231] As to consultation, whilst it is correct that mere consultation of a database may not, in itself, be an infringing act, I consider that the Claimants are correct in their assertion that if the consultation involves the permanent or temporary transfer to another medium, as is the case when looking at a database on screen, as opposed to a paper copy database, it does amount to infringement – see the discussion of BHB v William Hill in Laddie, Prescott and Vitoria (supra) at paras 23.66-23.67 supporting the view, which I consider to be correct, that all that was intended to be said by the CJEU in respect of "consultation" in that case was that when an electric database is lawfully consulted (i.e. with the express or implied consent of the database make), there is an implied consent or authorisation to any temporary transfer of the database to allow that lawful consultation, but no more than that. [232] In my judgment, if Mr O'Connor and Octax were not authorised to do what they did, then what they did went beyond mere consultation of the Slate database, and did amount to extraction subject the Defendant' further arguments.’
‘(1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database.’
‘[109] The leading judgment of the CJEU on implied consent to the use of a trade mark is Zino Davidoff SA v A&G Imports Ltd (Joined Cases (C-414/99), (C-415/99) and (C-416/99)) EU:C:2001:617. … … [112] The Court then explained the concept: “[45] In view of its serious effect in extinguishing the exclusive rights of the proprietors of the trade marks in issue in the main proceedings (rights which enable them to control the initial marketing in the EEA), consent must be so expressed that an intention to renounce those rights is unequivocally demonstrated. [46] Such intention will normally be gathered from an express statement of consent. Nevertheless, it is conceivable that consent may, in some cases, be inferred from facts and circumstances prior to, simultaneous with or subsequent to the placing of the goods on the market outside the EEA which, in the view of the national court, unequivocally demonstrate that the proprietor has renounced his rights. … [53] It follows … that consent must be expressed positively and that the factors taken into consideration in finding implied consent must unequivocally demonstrate that the trade mark proprietor has renounced any intention to enforce his exclusive rights. [54] It follows that it is for the trader alleging consent to prove it and not for the trade mark proprietor to demonstrate its absence. [55] Consequently, implied consent to the marketing within the EEA of goods put on the market outside that area cannot be inferred from the mere silence of the trade mark proprietor.” [113] Thus, if consent is to be implied the court must be satisfied that the relevant facts and circumstances unequivocally demonstrate that the trade mark proprietor has renounced any intention to enforce his exclusive rights conferred by the mark. [114] Counsel for the Defendants made the point that it is the demonstration which must be unequivocal, not the consent. It is not necessary that the trade mark proprietor gives unequivocal - in the sense of unqualified - consent. For instance, an unequivocal demonstration by the trade mark proprietor that he consents to the use of his mark provided it is never used in green would establish consent within the meaning of art.5, albeit qualified consent. [115] The burden of proof is the usual one: the alleged infringer must show on the balance of probabilities that the relevant facts and circumstances unequivocally demonstrate consent, see Dalsouple Société Saumuroise du Caoutchouc v Dalsouple Direct Ltd[2014] EWHC 3963 (Ch) at [39]. … [117] The language in Davidoff of unequivocal demonstration on the facts indicates, as one would expect, that this is an objective assessment of consent, not an assessment of subjective consent.’
‘[35] Nevertheless, art.2(a) and art.3(1) of Directive 2001/29 do not specify the way in which the prior consent of the author must be expressed, so that those provisions cannot be interpreted as requiring that such consent must necessarily be expressed explicitly. It must be held, on the contrary, that those provisions also allow that consent to be expressed implicitly. [36] Thus, in a case in which it was questioned about the concept of a “new public”, the Court held that, in a situation in which an author had given prior, explicit and unreserved authorisation to the publication of his articles on the website of a newspaper publisher, without making use of technological measures restricting access to those works from other websites, that author could be regarded, in essence, as having authorised the communication of those works to the general internet public (see, to that effect, Svensson [2014] 3 C.M.L.R. 4 at [25]–[28] and [31]). [37] However, the objective of increased protection of authors to which recital 9 of Directive 2001/29 refers implies that the circumstances in which implicit consent can be admitted must be strictly defined in order not to deprive of effect the very principle of the author’s prior consent. [38] In particular, every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes. [39] Failing any actual prior information relating to that future use, the author is unable to adopt a position on it and, therefore, to prohibit it, if necessary, so that the very existence of his implicit consent appears purely hypothetical in that regard.’
‘Avoidance of certain terms affecting lawful users 19.—(1) A lawful user of a database which has been made available to the public in any manner shall be entitled to extract or re-utilise insubstantial parts of the contents of the database for any purpose. (2) Where under an agreement a person has a right to use a database, or part of a database, which has been made available to the public in any manner, any term or condition in the agreement shall be void in so far as it purports to prevent that person from extracting or re-utilising insubstantial parts of the contents of the database, or of that part of the database, for any purpose.’
‘(1) In this Part “database” means a collection of independent works, data or other materials which – (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.’
‘(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.’
‘29. (1) Where a database— (a) was created on or before27th March 1996 , and (b) is a copyright work immediately before1st January 1998 , copyright shall continue to subsist in the database for the remainder of its copyright term. (2) In this Regulation “copyright term” means the period of the duration of copyright under section 12 of the 1988 Act (duration of copyright in literary, dramatic, musical or artistic works).’
‘[80] Where a copyright work is created by working on a series of drafts, it is possible to analyse the artistic or literary input in two ways. One approach is to treat each draft as a separate, derivative copyright work. On this approach only the skill and labour which goes into producing the draft in question is assessed for originality. A second approach is to treat the work holistically as a single work which required the totality of the skill and labour involved in producing all the drafts to produce it. Often the choice between these two approaches will not matter, for example if it is clear that one author produced all the drafts, or all the authors made the work in the course of their employment for a single employer in whom the copyright will vest by operation of law. Where all the relevant copyright is vested in the same person, splitting up the skill and labour into historical chunks will only add complexity. The present case, by contrast, was one where one could see from the pleadings that it could well matter which approach was taken, as it was clear that Ms Kogan had been more involved in the early drafts than the later ones. Certainly, this was never a case which would turn on the circumstances relating to the converting of the penultimate draft into the final screenplay.’
‘a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.’
‘It is the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing which is protected in the case of a literary or dramatic work, …’
‘20 Infringement by communication to the public (1) The communication to the public of the work is an act restricted by the copyright in— (a) a literary, dramatic, musical or artistic work, … (2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include— … (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.’
‘to grant or purport to grant to a third person the right to do the act complained of, whether the intention is that the grantee shall do the act on his own account, or only on account of the grantor’
‘The Defendants independently created their own database of address information from resources available on OGL terms or otherwise on open source terms.’
‘(1) The owner for the time being of the Postcode Address File shall— (a) maintain the File, and (b) make the File available to any person who wishes to use it on such terms as are reasonable. (2) Compliance with subsection (1) shall be enforceable by civil proceedings brought by OFCOM for an injunction or for interdict or for any other appropriate relief or remedy. (2A) OFCOM may give a direction to the owner for the time being of the Postcode Address File requiring the owner— (a) to issue, and comply with, a code of practice dealing with the making of revisions to the File, or (b) to make such modifications of the code as are specified in the direction.’
‘Data Extraction the extraction of PAF® Data or any part of it for the generation of new address records in a new or existing database End User a single legal entity who you or a Licensee may permit to use PAF® Data through its Users in accordance with this Licence End User Terms the terms set out in Schedule 1 Licensee a person whose use of PAF® Data you authorise further to this Licence, or whose use is authorised by such a person by way of a sub-licence granted further to this Licence (whether directly or by way of a chain of sub-licences) but not an End User Solution a product or service or other solution which benefits from or incudes PAF® Data (including the provision of PAF® Data itself) in whatever form, however produced or distributed and whether or not including other functionality, services, software or data User an individual authorised by an End User to use a Solution’
‘1. End Users' permitted use of Solutions End Users may freely use PAF® Data in Solutions in accordance with these End User Terms. 2. Conditions of use (a) End Users must not make copies of PAF® Data except as permitted by these End User Terms or reasonably necessary for back-up, security, business continuity and system testing purposes. (b) End Users may use PAF® Data for Data Extraction but Extracted Data: (i) may only be accessed by Users, and (ii) must not be supplied or any access to it provided to any third party. … (e) Except as set out in these End User Terms, End Users must not: (i) transfer, assign, sell or licence Solutions or their use to any other person, (ii) use Solutions to create a product or service distributed or sold to any third party which relies on any use of PAF® Data, including copying, looking up or enquiring, publishing, searching, analysing, modifying and reformatting, or (iii) copy, reproduce, extract, reutilise or publish Solutions or any of them. … 4. Personal rights End User rights are personal, limited and non-transferable.’
‘[94] … The plain fact is that Mr Fisher has sat back and permitted the two societies to account to the defendants for royalties in respect of the musical copyright in the Work for nearly 40 years. The fact that he may have had no awareness of his right in law to share in the royalties or had felt unable to vindicate his claim in the meantime (whether because of poor advice or for other reasons) does not seem to me to matter. … For so long as Mr Fisher chose not to make and establish his claim the defendants had no reason to think that they were not entitled to the payments they received. Moreover, for so long as Mr Fisher allowed the societies to account to the defendants, notwithstanding his long held belief that as co-writer of the music he was entitled to share in the musical copyright or at the least to be recognised as having co-written the Work, he must be taken to have gratuitously licensed the exploitation of his copyright. …’
‘(1) An unfair term of a consumer contract is not binding on the consumer.’
‘an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession’
‘Insofar as the Claimant seeks to prevent the Defendants from use of their own database, this attempt constitutes an unlawful restraint of trade, an unreasonable restriction on a lawful user, and/or anti-competitive conduct as particularised in the Counterclaim below.’
‘[135] To summarise, there is a general principle of the common law that a person who knowingly procures another person to commit an actionable wrong will be jointly liable with that other person for the wrong committed. The liability of the procurer is an accessory liability. Where the primary wrong is a breach of contract, this accessory liability takes the form of a distinct tort. Where the primary wrong is a tort, however, there is no need to posit a separate tort of procuring another person to commit a tort. Where the general principle applies, the procurer is made jointly liable for the tort committed by the primary wrongdoer. [136] There is a further, distinct principle of accessory liability by which a person who assists another to commit a tort is made jointly liable for the tort committed by that person if the assistance is more than trivial and is given pursuant to a common design between the parties. On the facts of a particular case both principles may be engaged. But on the present state of the law assistance which falls short of procuring the primary wrongdoer to commit the tort cannot lead to liability unless it is given pursuant to a common design. [137] Although procuring a tort and assisting another to commit a tort pursuant to a common design are distinct bases for imposing accessory liability, they must operate consistently with each other and such that the law of accessory liability in tort is coherent. Considerations of principle, authority and analogy with principles of accessory liability in other areas of private law all support the conclusion that knowledge of the essential features of the tort is necessary to justify imposing joint liability on someone who has not actually committed the tort. This is so even where, as in the case of infringement of intellectual property rights, the tort does not itself require such knowledge.’
‘(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to— (a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.’
‘Before we can allow you to use Royal Mail’s Postcode Address File, we need you to provide some information about your company or yourself and agree to both the Ideal Postcodes and Royal Mail Terms and Conditions.’
‘If you are an agent (e.g. a web design company) signing up on behalf of a client, please have your client fill out their details and agree to the service terms.’
‘We may change these terms from time to time. The terms that apply to you are those posted here on our Website at the time you submit your order.’ ‘You agree to use Ideal Postcodes, and any data obtained through this service [defined to mean Ideal Postcodes], in accordance with the Royal Mail End Users’
‘We may update the Terms of Service from time to time. You will be required to agree to any updates to the Terms of Service in order to make a new order submission.’
‘You may use the Ideal Postcodes Service to retrieve, validate or cleanse addressing information.’
‘[31] So far as incorporation is concerned, the legal test to be applied is whether Camelot did what was reasonably sufficient to bring the various Terms and Conditions to the notice of a player of the Game. The trader is generally required to signpost “onerous or unusual” terms if he wishes to incorporate them, but as Hale LJ observed in O'Brien v MGN Ltd[2001] EWCA Civ 1279 ; [2002] CLC 33 at [23]: “… the words ‘onerous or unusual’ are not terms of art. They are simply one way of putting the general proposition that reasonable steps must be taken to draw the particular term in question to the notice of those who are to be bound by it and that more is required in relation to certain terms than to others depending on their effect.”’
‘Our Terms of Service have been updated. Please review the Terms and your information to proceed.’
‘Terms of Service By clicking the link below, you agree to the Ideal Postcodes Terms of Service’
‘[149] The principles applicable to contractual interpretation are well established and not in dispute. When interpreting a written contract, the court is concerned to ascertain the intention of the parties by reference to what a reasonable person, having all the background knowledge which would have been available to the parties, would have understood them to be using the language in the contract to mean. It does so by focussing on the meaning of the relevant words in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the contract, (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions: Arnold v Britton[2015] UKSC 36 per Lord Neuberger at [15]-[23]; Wood v Capita Insurance Services Ltd[2017] AC 1173 at [11]-[15]; Rainy Sky SA v Kookmin Bank[2011] UKSC 50 per Lord Clarke at [21]-[30]; Chartbrook Ltd v Persimmon Homes Ltd[2009] UKHL 38 per Lord Hoffmann at [14]-[15], [20]-[25].’
‘Ds dispute that IDDQD became a party to [the RMG EUT] and says only RMG had a right of action under it and all IDDQD could do was terminate its own agreement when it would also fall away.’
‘Client means the organisation named as the "Client" or "Business" or "Company" in the registration form for use of the Service and Software Materials, the IDDQD Quote Sheet or this Agreement. Database means a third party database, access to the whole or part of which is made available to the Client by IDDQD. Licensor means a third party licensor of the Database or any of the Software Materials. Service means the online service made available, or agreed to be made available, by IDDQD to the Client pursuant to this Agreement (excluding the Premium Service). Software means the software (including any Enterprise Software) and data (including the relevant Databases) made available by or on behalf of IDDQD, which enable the Client to access or use the Service; which enable the Client to access or use the Service; including any updates made available to the Client from time to time by or on behalf of IDDQD. "Software" excludes any software, data or databases provided by the Authorised Reseller under a separate contract between the Client and the Authorised Reseller. Software Materials means the Software and the Documentation Third Party Contracts means the Third Party Licences and Third Party EULAs. Third Party EULAs means the material terms of the third party end user licences found on the IDDQD Website on the Third Party Licenses Page. Third Party Licenses means the material terms of the third party licences which are in force at ideal-postcode.co.uk and which are imposed by the Licensors on IDDQD in respect of the Software Materials and/or Service.’
‘1. The Services may include use of third party software and services which are governed by Third Party Licences and Third Party EULA's. The terms of these Third Party Contracts are listed on the Third Party Licenses Page. The Client confirms that it has read, agrees to, and shall be bound by the terms of the applicable Third Party Contracts and will observe those provisions in any applicable Third Party Contracts relating to the Services. 2. The Client agrees that by requesting access to any third party software or data which is subject to a Third Party EULA, the Client shall be bound by such Third Party EULA's (where this is the intention of the Third Party EULA), and the Licensor will have rights and remedies against the Client pursuant to this Agreement and the Third Party EULA. 3. By receiving the applicable Services outlined on the Third Party Licenses Page, the Client is deemed to enter into the relevant Third Party EULA with the relevant Licensor.’
‘(i) As to 3.1(2) this prohibited reselling (including for free) and also copying when this is what an API is for, updating data in one’s own records. (ii) As to 3.1(3)(i) this prevents API use by “competitors” which is anti-competitive and unreasonable. (iii) As to 3.1(3)(ii) this prevents data cleansing by the API which had been permitted in the previous terms and was also the subject of an express representation in the 2018 terms such that “You may use the Ideal Postcodes Service to retrieve, validate or cleanse addressing information” and the Defendants wanted that service and relied upon that representation. (iv) In relation to 5.7(iv), this seeks to prevent use of the cleansed and verified data or database by third parties which is unreasonably restrictive and would render the API service meaningless. (v) In relation to clause 7.2(1), this seeks to prevent resale of distribution of cleansed and verified data, defeating the purpose of the API service.’
‘Ds also argue that terms on which IDDQD relies were an unreasonable restraint of trade: … This can have a similar contour to Lawful user in this context and/or will overlap with Competition law defences and counterclaim.’