Saturday, 1 August 2009

And so it was that later ...

The House of Lords, in its last batch of judgments before its metamorphosis into the Supreme Court, upheld Blackburne J's judgment in Matthew Fisher v Gary Brooker which had been rather emasculated by the Court of Appeal. The interesting copyright point - that the organ part was worth 40 per cent of the song, basically, and surely few music fans would dispute that - was not in issue: what was being argued about was laches and estoppel. The time it took Matthew Fisher to pursue his claim has been the subject of much comment, but their Lordships and Ladyship (Lady Hale admitting to being able to remember the sixties, which I thought was evidence that the speaker couldn't have been there: what were the other Lords doing at the time?) proceeded on the basis that there was no detriment to Gary Brooker. Quite the opposite: he enjoyed exclusive copyright in the music for many years during which, had Matthew Fisher moved a bit more speedily, he would only have had 60 per cent. That benefit clearly outweighed any possible detriment, although their Lordships took the view that the laches claim was fatally flawed anyway.

In fact, Mr Fisher did not have it all his own way in the House of Lords. Their Lordships did not reinstate the third declaration entirely: they asked the parties for further submissions on the matter of whether Essex Music's rights had been validly assigned to Onward Music, which is however a bit of a sideshow.

The Court of Appeal's judgment had, their Lordships thought, been inconsistent. Lord Neuberger said that, granted that Mr Fisher originally owned 40 per cent of the musical copyright and had not been estopped from asserting it, there was no reason to deny him the right to seek an injunction or compensation for infringement of his copyright. The Court of Appeal had taken the view that, on equitable grounds, it should refuse to declare that the right existed because he should not be entitled to seek an injunction. Lord Neuberger said that if Mr Fisher applied for an injunction, it would be for the court to which the application was made to decide whether it would be oppressive, and he also made the point that the Court of Appeal would have denied him the opportunity to protect his 40 per cent copyright by obtaining an injunction against other infringers. Just because there was no threat that Procol Harum or Gary Brooker personally would use the copyright in a way that Mr Fisher might want to stop did not mean that he should not be able to stop others.

Lord Neuberger's opinion also made clear that there is no statutory time limit for bringing an action for infringement of copyright, which it is good to have confirmed - this is something that delegates on courses have asked me about in the past. Their Lordships also held that the respondents' reliance on the equitable doctrine of laches was irrelevant where what the claimant sought was a declaration relating to a property right - which is not equitable relief. Even if laches were relevant, Lord Neuberger said that the respondents would have to show acts during the period of delay that would mean the balance of justice justified refusing the relief. Here there were omissions, not acts.

Lady Hale's comment about delay had a little more to it: "As one of those people who do remember the sixties, I am glad that the author of that memorable organ part has at last achieved the recognition he deserves", she said. Am I wrong to think that lacks the impartiality that we expect from judges? Or are they entitled to stop being impartial when they have heard all the evidence? I suppose they have to, otherwise nothing would ever be decided. But I too am glad - though on the other hand, I think it right that Robert Godfrey should not be able to claim copyright in Mockingbird ... but that's another story.

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