ROLLER COASTER RIDE FOR SOFTWARE WRITER; TWO FROM THE ECJ

Roller Coaster Ride for Software Writer

The IPKat stumbled across Sawyer v Atari Interactive Inc, a Chancery Division decision of Mr Justice Cooke from 19 October, on the LexisNexis Butterworths subscription service.

Sawyer wrote computer games which Atari developed and distributed. Between 1998 and 2002 Sawyer and Atari entered into four agreements under which Sawyer licensed Atari, in exchange for royalties, to publish the first two Roller Coaster Tycoon games, plus two 'add-ons' to the first of those games; Atari was under a duty to account to Sawyer for its sales. In May 2003 Sawyer told Atari he wanted to conduct an audit for the period 1 January 1999 to 31 March 2003, invoking the licence agreements. Atari said no in respect of sales prior to 26 July 2001. After reports produced by forensic accountants however showed accounting errors, Sawyer sued for breach of contract in that Atari (i) refused to let the audit take place, and (ii) under-accounted for the royalties to the tune of nearly $US5 million. Atari denied liability and counterclaimed for (i) the refund of allegedly overpaid royalties and (ii) breach of Sawyer's duty of exclusivity in respect of a third edition of Roller Coaster Tycoon that was offered to a different games developer. Sawyer applied to strike out the counterclaim and sought partial summary judgment. Cooke J agreed with Sawyer that there was no basis for the counterclaim, struck it out and entered partial summary judgment in favour of Sawyer.

This note gives little clue as to the niceties of the dispute, says the IPKat, but it does serve as a warning to not just software writers but any creative individual who enters into a licence with a publisher or product developer - make sure your audit and accounting interests are adequately provided for under the licence, or you may find it difficult, if not impossible, to substantiate your suspicions that you are being underpaid.

Latest version of Roller Coaster Tycoon 3 here


Two from the ECJ

Two fresh intellectual property rulings are up on the Curia website today. They both convey the same message - you can't monkey around with lending and rental rights.

Case C-36/05 Commission v Spain: by exempting almost all, if not all, categories of establishments undertaking the public lending of works protected by copyright from the obligation to pay remuneration to authors for the lending carried out, the Kingdom of Spain has failed to fulfil its obligations under Articles 1 and 5 of Council Directive 92/100 on rental/lending right. As the Court says (at paragraphs 28 to 29):

"... the Kingdom of Spain maintains that the cultural promotion objective takes precedence over guaranteeing that authors receive appropriate income. The freedom conferred on Member States by the Directive thus enables them to allow authors only very limited, symbolic remuneration, or even none. ...

It is true that cultural promotion is an objective in the general interest which allows the exemption, under Article 5(3) of the Directive, of certain public lending establishments from the obligation to pay remuneration. However, the protection of rightholders in order to ensure that they receive appropriate income is also a specific objective of the Directive ... It was precisely to preserve that remuneration right that the Community legislature sought to limit the scope of the exemption by requiring that national authorities exempt only certain categories of establishments from that obligation".

Case C-198/05 Commission v Italy is only available in French and Italian. It looks quite similar to Commission v Spain, though. The Court rules: "En exemptant du droit de prêt public toutes les catégories d’établissements de prêt public au sens de la directive 92/100 ..., la République italienne a manqué aux obligations qui lui incombent en vertu des articles 1er et 5 de cette directive". Or, as Babel Fish would have it:

"By exempting right of public loan all the categories of establishments of public loan within the meaning of directive 92/100..., the Italian Republic missed to the obligations which fall on to him under the terms of the articles 1st and 5 of this directive".

Not bad, eh, for a computer? But Merpel asks, if you stick a piece of French into a translation program and it comes out in English, who owns the copyright in the English translation ...?