Monkey selfie: Animal charity Peta challenges ruling - BBC News

BBC News reported a while ago that Peta, the animal rights charity, with which I usually have complete sympathy, is arguing in a court in California that copyright in the now-famous macaque self-portrait belongs to the photographer. It sounds as if there is some dispute about which monkey took the photo (by which I mean pressed the shutter release or whatever it's called on a digital camera, as I can't imagine that he or she had the faintest idea what the action would lead to), but that leaves the main point that the charity argues that "[n]othing in the Copyright Act limits its application to human authors…".

I claim no particular expertise in U.S. copyright law, and am prepared to accept that there is at least an arguable case to support that proposition. Whether that justifies Peta spending charitable funds on a lawsuit which most would consider frivolous is another matter. Ever since I read Peter Singer's "canonical" (nice word - thanks Wikipedia) book Animal Liberation (here on Amazon), one of the many ways in which I distracted myself from the grinding boredom of articles of clerkship (1978-1980), I have tried to be as conscious of speciesism as of racism and sexism. I haven't perfected it, but I hope I have got close.

I can't put my hands on my well-worn copy (the paperback version of the first (1975) edition, published 1977) just at the moment, but I don't think it contains anything about animals' copyright. [later: I have found it now, and there is no entry in the index for "copyright" or "intellectual property", or even just "property", which isn't conclusive but will do for now.] In UK copyright law, the author of a work (and therefore, usually, the first owner of copyright in it) is the person who creates it. A person is (this from the Oxford Companion to Law) typically defined as "a being, entity or unit which can bear legal rights and duties". The word "being" without the adjective "human" seems to leave open the possibility of animals being authors. However, legal personality, the article in the Companion goes on, has to be distinguished from legal status, citing as an example that we can say the legal status of an animal [a non-human animal, I would add, not for the avoidance of doubt but to highlight the ambiguity or inaccuracy of the original statement] is that of property and that of a human is a person.* Professor Singer might, I imagine, take issue with the narrow definition of "person", especially as the whole point of his thesis is, as I understood it, that we should regard animals as having rights (though not necessarily accompanying duties). However, that is clearly the way the law works and I don't see any way for Peta to put forward a case for an alternative interpretation in the English courts, even if the Charity Commission would let them.

Now that I have found my copy of the book again, I'll search it for any suggestion that animals' rights should extend to owning property, and in particular intellectual property. I'm fairly confident that, however proprietorial some animals might be, Professor Singer didn't advocate extending legal personality to them to that extent.

Not Lucy's book

*See further, R. Tur, 'The "Person" in Law', in A Peacocke and G Gillett (eds), Persons and Personality: A Contemporary Inquiry (Oxford: Basil Blackwell, 1987), 121, and N Naffine, 'Who are Law's Persons? From Cheshire Cats to Responsible Subjects' (2003) 66/3 Modern Law Review 346. Professor Naffine is also the author of the article in the Oxford Companion to Law to which I referred and from which I repeat these two references.

'via Blog this'

Destra Software Ltd v Comada (UK) LLP & Ors [2013] EWHC 1575 (Pat) (11 June 2013)

Destra Software Ltd v Comada (UK) LLP & Ors [2013] EWHC 1575 (Pat) (11 June 2013)  is a decision of Norris J in the Patents Court, concerning that old favourite ownership of copyright in computer programs. At 53 paragraphs, it feels short, and the impression is reinforced by the fact that it has no table of contents as so many judgments have these days. The question, as so often happens, was whether copyright in the software had been assigned to the commissioner, or whether the commissioner only had a licence to use it in certain ways (including, in this case, allowing customers to instal it on their servers, which is a bit of a novel issue).

The recorder held (highlights added to make it more comprehensible, but really you have to read the whole thing to get it):

1. I am in no doubt that under the contract that predated the Consultancy Agreement it was implicit that the copyright belonged to the commissioning entity and not to the contractor. I so conclude for the following reasons:-



a) The very foundation of the venture conducted by Comada (later Comada Cayman) was the MAT:ware software. The idea that the actual copyright in the MAT:ware software should not belong to Comada/Comada Cayman makes no more commercial sense than it did in IBCOS. MAT:ware is not a tool that is deployed in Comada's business: it is the very business itself. It is what the whole enterprise was about.

b) The object of the business was that MAT:ware should be exploited in whatever way proved to be beneficial. If an informed bystander had been asked "Does anyone have a veto over the way in which Comada Cayman exploits the software?" he or she would have said "Of course not: it is up to the company through its directors and shareholders what they do. Everyone's efforts in establishing the enterprise are reflected in their shareholdings and their individual contractual arrangements".

c) One of the principal means of exploiting the software was by licensing: it was necessary for Comada Cayman to have full rights of enforcement in multiple jurisdictions. That is secured by assignment but not by licensing.

d) The ultimate aim of the project was to dispose of the enterprise to the maximum advantage of the participants: it is necessary to the attainment of that goal that Comada Cayman should own the intellectual property rights and be able to dispose of them freely without requiring any purchaser of the business to negotiate with multiple Claimants to the copyright in the core product in order to gain complete control.

e) The MAT:ware software was a collaborative effort: it makes no sense for individual team members to retain property rights of any sort in what that member produced.

f) There cannot be any special implied term relating to what Mr Hughes produced because Mr Hughes never disclosed to any other participator either that he was creating something called "the Destra platform" or that he was incorporating part of it in the work that he was doing on the MAT:ware software. Implied terms are based on what is obvious given the common knowledge of the parties. You cannot create an implied term out of secret knowledge held by one party alone. That was the view I expressed in Burrows v Smith [2010] EWHC 22 (Ch) at paragraph [44]: and I adhere to it. That is why the actual decision in Clearsprings does not assist in this case: in Clearsprings it was common knowledge that in performing the commission the contractor would be using software that already existed.

Collaboration agreements: who owns the IP?

Wilkinson v London Strategic Health Authority [2012] EWPCC 48 (14 November 2012) is a slightly tragic story of lost copyright, one that is repeated with (I guess) great frequency. It's all down to that modern disease, grabbing (or at least making a grab at) all the intellectual property that can be seen, whether it's needed or not.

The case turned on the construction of an agreement. The Health Authority contended that it gave them copyright in pre-existing works created by Dr Wilkinson, and not surprisingly she contended otherwise. HHJ Birss QC did not imply an assignment of copyright, but did imply a licence for the NHS to use the pre-existing materials, even in competition with Dr Wilkinson, which makes her (partial) victory in this case distinctly pyrric - and emphasises the crucial importance of getting the agreement right in the first place.

However, it is good to see that cases like this can get an airing these days, in the Patents County Court, the jurisdiction that should show the way forward for the European Union - which is resolutely going in a different direction. Read, and enjoy, this trenchant speech by Rt Hon Lord Justice Kitchin.

Bucks Fizz: dispute over group's name

It happens in the best of circles: members of a popular music combination have fallen out over the use of the name. The latest is Bucks Fizz, Eurovision winners in 1981 (a matter about which I will be respectful, in light of the result in 1997 and in particular the antecedents of the writer of the winning song that year) as a foursome, three of whom are still performing under the name "The Original Bucks Fizz" to the displeasure of the fourth, who has his own group which uses the name - and describes itself as "the official Bucks Fizz" - and importantly has the trade mark, or at least the owner of the trade mark (one of its members). (Between the two modern incarnations and the original there is not an apostrophe to be seen.) Oh, and neither will I be scathing about Bucks Fizz insofar as the lyrics to many of their songs were written by Pete Sinfield - unlikely as that might seem.

The Guardian reports that a Hearing Officer at the Intellectual Property Office (or The Original Patent Office, as it might be called) is seised of the matter (well, even Guardian Law didn't put it quite like that), a hearing has taken place and he will give his decision in a few weeks. It says that the trio's solicitor had told the hearing officer that there is a verbal agreement about the use of the name, but not whether it's a written verbal agreement or an oral one.

On the basis of the Saxon decision [2003] FSR 39 the name and goodwill would be assets of the partnership (a partnership at will, if not a formally constituted one) and would therefore be dealt with along with other partnership assets - though I don't know whether they were likely to be considered a partnership. There doesn't seem to be a sufficiently old Bucks Fizz company on the register, even a dissolved one - there's a Bucks Fizz Limited incorporated on 25 July 1997, a month after the trade mark application was filed, in the entertainment business, but that's 16 years too late really. Given that they were a manufactured band, a sort of musical SPV, it's reasonable to expect that the business structure received more attention than in most bands, so perhaps the ownership of the trade marks is clearer than usual. In any case, it's worth noting that a very similar dispute resulted in an injunction against an earlier spinoff back in the late 90s.