Virtual Map (Singapore) Pte Ltd v Singapore Land Authority

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 25 March 2008
• Neutral Citation: [2008] SGHC 42
• Docket Number: District Court Appeal No 19 of 2007
• Date: 25 March 2008
• Published date: 25 March 2008
• Year: 2008
• Plaintiff Counsel: Low Chai Chong, Mark Seah and Alvin Lim (Rodyk & Davidson LLP)
• Citation: [2008] SGHC 42
• Defendant Counsel: Dedar Singh Gill and Yvonne Tang (Drew & Napier LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether there was copying,Fingerprints planted in copyright works,Section 10(1)(b) Copyright Act (Cap 63, 2006 Rev Ed),Copyright,Whether copying was substantial,Whether independent creation or mere altering of data,Infringement

25 March 2008

Tan Lee Meng J:

1 The appellant, Virtual Map (Singapore) Pte Ltd (“VM”), appealed against the decision of District Judge Thian Yee Sze (“DJ Thian”) that it had infringed the copyright of the respondent, Singapore Land Authority (“SLA”), with respect to SLA’s street directory data in vector format and SLA’s address point data of Singapore in vector format (the “copyright works”) and that SLA was entitled to, inter alia, an injunction restraining it from infringing the copyright works. DJ Thian also ordered an inquiry as to damages or, at SLA’s option, an account of profits.

Background

2 SLA was established on 1 June 2001 following the merger of four government departments, namely the Singapore Land Registry, the Land Office, the Survey Department and the Land Systems Support Unit. It provides land survey services and land information services and publishes the Singapore Street Directory.

3 VM, which was incorporated in 1999, develops and publishes location-based software and systems. Its services include the provision of online maps, which are the subject matter of the present action.

4 SLA entered into seven licence agreements with VM regarding the use of its street directory data in vector format (“street directory vector data”) and address point data in vector format (“address point vector data”). However, on 10 June 2004, SLA served notice on VM that all licence agreements were terminated. In accordance with the terms of the termination clause in the licence agreements, the agreements terminated on 10 July 2004. There is no assertion that SLA wrongfully terminated the agreements.

5 SLA alleged that after the termination of the licence agreements, VM continued to offer for sale maps that are reproductions of its copyright works. On 20 July 2005, SLA’s solicitors wrote to VM to demand that the latter stop using materials that contained reproductions of SLA’s copyright works and that VM furnish a written undertaking not to repeat the acts of copyright infringement. VM denied having breached SLA’s copyright. Consequently, SLA instituted the present proceedings.

6 At the trial in the District Court, VM asserted that SLA did not own any copyright in the copyright works. However, during the hearing of the appeal, its counsel, Mr Low Chai Chong (“Mr Low”), informed the court that VM was prepared to accept that SLA has copyright in the compilation of the street directory vector data and the address point data but maintained that there was no copying or substantial copying of SLA’s data.

Did VM breach SLA’S copyright?

7 For VM to have breached SLA’s copyright, it must be shown that there is an objective similarity between the copyright works and the work of VM that allegedly infringed SLA’s copyright. It must also be established that this similarity resulted from copying of the copyright works.

(i) The process of map-making

8 To ascertain whether there has been any infringement of SLA’s copyright works, the process of map-making and the storage of the data collected should first be considered.

9 SLA’s expert, Mr Carl Edwin Calvert (“Mr Calvert”), a British university lecturer in surveying, mapping and intellectual property rights in geographical information systems (“GIS”), who runs his own consultancy firm, explained that for the purpose of map-making, surveying is not a random artistic impression but an accurate representation of the earth in a two-dimensional framework. One starts with a geodetic datum and framework that is the “skeleton” of an area to be mapped. Further surveying is then required to provide “flesh” for the skeleton. All maps have their genesis in a rigid mathematical framework with regard to the physical shape of the earth and the detail. Since the 1980s, remote sensing, which involves satellite images of the earth, has been utilised for map-making. All the same, the physical details need to be checked on the ground to verify the interpretation and position of the information and to gather information not available from the satellite images. Finally, the details on maps must be classified into transport networks, public buildings, private buildings, parks, lakes, rivers etc and all these must be related to the framework used for the map. This requires compliance with a set of rules and involves the interpretation of those rules by the cartographer responsible for placing names or attributes of places in the map. Needless to say, the skill and experience of the cartographer is crucial for proper detailing.

10 Data obtained in the map-making process may be stored either as vector data or raster data. For the purpose of constructing networks, most computer-based Geographic Information Systems (“GIS”) use vector data. The difference between the two types of data was explained by DJ Thian in her Grounds of Decision (“GD”) at [67] as follows:

Vector data is digital data in the form of points, lines and polygons having a geographic position and shape defined by a set of coordinates. It is data which can be best described as a collection of “rods” of known length and direction. All computer-based … (“GIS”) use vector data so that networks can be constructed. Raster data is the alternative representation of that data in pixels. It is the information used to represent a computer image as a grid of pixels. Rasterised graphics are made up of rows of pixels, such that any change in the size of the picture or the graphic itself results in a change of the pixel size as well. Typical file formats of raster data include jpeg and tiff.

11 VM’s expert witness, Mr Grant Vincent (“Mr Vincent”), a British Chartered Land Surveyor, explained how vector data is converted into raster data in his affidavit of evidence-in-chief (“AEIC”) at p 42 as follows:

[T]his is a process of taking large scale intelligent data, generalising it to form the smaller scale mapping and then sending to print. The data in print is ‘dumb’ ie it has no intelligence to which the user can interrogate to find value-added data.

12 The following elucidation of the convertibility from one form of data to the other by SLA’s expert, Mr Calvert at p 7 of Appendix B of his AEIC, is also helpful:

Of course, the matter of going between VECTOR data and RASTER data and vice-versa seems trivial at first glance. Indeed to go from vector to raster is simple; it means that the vector data must be first plotted as a picture then that picture is captured in a manner akin to a photograph. In other words it can be done with little or no human intervention. The reverse is not true. In going from raster to vector each and every line must be traced on a digitising tablet and so the picture is deconstructed into a series of lines, each with a length and direction and usually a list of attributes such as whether the line represents a building or road or edge of vegetation. To vectorise a raster image will take many months of skilled labour as well as a set of rules which each person doing the digitising needs to follow so that the final vector data is consistent within itself.

(ii) Substantial reproduction is sufficient for copyright infringement

13 For copyright infringement, all that is required is a substantial reproduction by VM of SLA’s copyright works. Section 10(1)(b) of the Copyright Act (Cap 63, 2006 Rev Ed) provides that a reference to a “reproduction, adaptation or copy of a work” shall include a reference to a “reproduction, adaptation or copy of a substantial part of the work”. The burden of proving substantial copying lies with the plaintiff: see Creative Technology Ltd v Aztech Systems Pte Ltd [1997] 1 SLR 621 (“Creative Technology”).

14 If there was any copying in the present case, it was “altered” copying because VM’s maps are not an exact replica of SLA’s works. For altered copying, Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs, (Butterworths, 3rd ed, 2000) vol 1 suggests at p 148 that the relevant test for copyright infringement is whether or not the infringer has “incorporated a substantial part of the independent skill, labour etc contributed by the original author in creating the copyright work”. In Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416 (“Designers Guild Ltd”), Lord Scott described this test at p 2431 as “a useful test, based as it is on the underlying principle of copyright law, namely, that a copier is not at liberty to appropriate the benefit of another’s skill and labour”.

15 While SLA claimed that VM substantially reproduced its copyright works, VM asserted that its online maps from 9 August 2004 were independently created through the use of GPS data and high-resolution satellite imagery. Its counsel, Mr Low, submitted:

Defendants say that by virtue of their GPS surveys of almost all roads in Singapore, with a car equipped with a GPS machine, it was possible to derive from the downloaded GPS data an outline of all the major and minor roads in Singapore. If you use that outline and put it on top of satellite images of Singapore, you would be able to derive a framework, so to speak, of a map with all the major roads in Singapore.

16 SLA contended that the far too many “fingerprints” of its copyright material in VM’s maps show that there was substantial copying of its works rather than independent creation. These “fingerprints” are described by SLA’s expert, Mr Calvert, at p 35 of his AEIC as objects “so inconsistent with [VM’s] claimed methodology and so consistent with [SLA’s] portrayal that it is beyond coincidence that the object is the same in both portrayals”. Both Mr Calvert and VM’s expert, Mr Vincent, agreed that “fingerprints” are relevant to determine whether there has been copyright infringement. They also accepted that national mapping organisations insert deliberate errors in their base maps to detect the infringement of their copyright in the maps created by them.

17 The weight to be given to “fingerprints” was considered by the Court of...