The CMA (Competition and Markets Authority) have decided to close their investigation into concerns that ESS (Education Software Solutions) may have broken the law by taking action to prevent schools from switching from their SIMS software to an alternative MIS (Management Information System) provider.
The investigation came about after ESS, the provider of the SIMS school MIS, warned schools and their competitors not to use backup copies of the schools’ SIMS database to assist in transferring data from SIMS to a new MIS provider. (Read our blog on that here).
ESS stated that doing so would be a breach of ESS’ intellectual property (IP) rights, since any such backup would include code that was ESS’ IP. This led to several MIS providers offering to indemnify schools against legal costs if they used backup files to transfer school data to them. (Our blog on this can be found here).
Numerous complaints were logged with the CMA about this apparent reluctance on the part of ESS SIMS to facilitate the transfer of school data to new providers, causing the CMA to launch an investigation.
Schools and MIS providers told the CMA that sharing database copies was a longstanding and widespread practice used in the sector for data transfers of this kind, although ESS stated that it was unaware of this practice and that they had various reports etc. that could be used to transfer the data without infringing their IP.
The CMA launched their investigation earlier this year and have now decided to close the investigation without taking any action.
On the ESS SIMS website, ESS reported the closure of the CMA investigation, stating that they believe the complaints were “vexatious and a smokescreen for the continued unlawful use of ESS’ intellectual property”.
They go on to say that the investigation has been closed “with the CMA acknowledging that (as ESS had said all along) migration using the APIs is both viable, and in the CMA’s words, ‘less burdensome on schools and less error prone than the options that were available to schools when ESS first objected to the use of database back-ups for the purposes of switching MIS supplier”.
However, the CMA Case Closure Statement (here) states that the CMA have closed the investigation on the grounds that it ‘no longer constitutes an administrative priority for the CMA’.
It goes on to state “For the avoidance of doubt this does not constitute a decision by the CMA as to whether the Chapter II prohibition of the Competition Act (the ‘Chapter II prohibition’) has been infringed.”
So, is this the end of the matter? It certainly seems so at this time, although the CMA have also stated that its decision to close the investigation “does not prevent, pre-judge or fetter the CMA’s ability, if appropriate, to open an investigation under the Chapter II prohibition in future, or to take action using its other tools.”
Undoubtedly, schools and MIS competitors will have their own views on this one, but, for now, the matter has been closed and any MIS changes from SIMS to an alternative provider will need to use the SIMS APIs and SIMS Report Generator to extract the school data.
