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Wednesday, 26 July 2006

WHY COPYRIGHT LASTS SO LONG; LATEST IP&T


So now you know why the copyright term is so long ...

Clarke and another v Artprints UK and another is a Chancery Division decision of Mr Justice Lindsay, handed down last Friday but not yet available from BAILII. This note is taken from the LexisNexis Butterworth subscription service, which supplies so much useful information.

Artprints was involved in the reproduction and distribution of art works, the second defendant being its majority shareholder. Artprints started commercially reproducing works of the artist Francis Bacon under what it said were the terms of a copyright licence. Clarke and others sued Artprints for copyright infringement, claiming that Artprints' licence was invalid because it was they who owned the copyright. On 31 July 2001 interim injunctive relief was ordered and the court gave further directions concerning the conduct of the proceedings, with particular reference to disclosure timetables. For the next five years the case crawled slowly along. After both parties agreed to vacate the first trial date in December 2002, Clarke and his colleagues complained that the second defendant failed to comply with the disclosure requirements. It took till June 2003 for the parties to sort this issue out. Further delay occurred when one of the claimants died in March 2003 and the parties agreed not to seek a re-listing of the main action, pending the outcome of probate proceedings. Clarke wrote to the defendants in April 2004, saying that probate had been granted and again asking the second defendant to comply with the disclosure order. In 9 May 2005 the defendants said that the proceedings had taken far too much time thus far and that they would be taking all steps to bring the proceedings to their conclusion - but then did nothing.

In these proceedings the defendants sought to have the 2001 injunction discharged. They submitted that Clarke and his friends had caused inexcusable and unexplainable delay to the proceedings and that they were happy just to sit back and enjoy the interim injunction.

Left: A Francis Bacon masterpiece. The symbolism is clear: litigation takes forever if there's no "meating" of minds ...

According to the defendants, once an interim injunction was granted it was for the party benefiting from that injunction to enable the case to progress as expeditiously as possible. Since Clarke and Co. hadn't done that, the injunction should be discharged. Clarke and his colleagues disagreed: the delays were mainly caused by the defendants and the second defendant's refusal to comply with the disclosure order prevent the action being taken further. Also, some delays came from circumstances outside the parties' control, while other periods of inaction had actually been agreed.

Lindsay J dismissed the application. It was clear that the proceedings could have been brought to a final hearing earlier but, while Clarke and his colleagues had undoubtedly benefited from the terms of the injunction for five years, they had purposely delayed proceedings in order that they would continue them. It was clear that a large proportion of the delay was caused by the second defendant’s refusal to comply with the disclosure order, notwithstanding repeated requests for compliance, and that the other periods of delay had all been agreed between the parties and were not the claimants' fault. Accordingly there were no grounds upon which the order should be discharged.

The IPKat hates this sort of thing. There's litigation which is caused by the commission of an alleged wrong, which can't be helped. There's litigation which is caused by earlier litigation, which is highly annoying but sometimes necessary. Then there's litigation which is caused by litigants themselves, which is a by-product of dispute resolution that should be stamped out if possible by the use of firm case management with realistic time tables and dire threats as to what happens to those who, without good cause, fail to observe them. Merpel agrees. She vaguely recalls the dispute back in 2001 and had simply assumed that it had all been dealt with by now.

Francis Bacon here.
A different Francis Bacon here
Francis the Pig here


Latest IP&T

The IPKat's July 2006 issue of Butterworths' Intellectual Property & Technology Cases, edited by Michael Silverleaf QC and published by LexisNexis Butterworths, is now available in all its black and glossy splendour. This issue features just two cases, but they're both biggies. The first is McKennitt and others v Ash and another (Queen's Bench Division, Eady J), this being the confidentiality/ privacy suit brought by Loreena McKennitt (right) against a former friend who wrote a kiss-and-tell biography of her. The second is the Chancery Division of Blackburne J in HRH Prince of Wales v Associated Newspapers Ltd (No.2) - the copyright/confidentiality action over Prince Charles's Hong Kong diaries.

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