Penguin in denial; and now for a little Enterprise

The IPKat, a great admirer of the late Dorothy Parker's wit, is fascinated by the report in today's Telegraph that publisher Penguin is involved in litigation over the great lady's writings - if not her copyright. The story goes like this. In 1994, one Stuart Silverstein offered Penguin a compilation he had made and edited of Parker's uncollected poems.

Right: the late, lamented Dorothy Parker

Penguin did not want to publishe it as it stood but offered him US$2,000 for the right to include Silverstein's work in its Complete Poems collection. Silverstein declined and opted instead for another publisher, Scribner, which published the lost poems compilation with his introduction in 1996 under the title Not Much Fun: The Lost Poems of Dorothy Parker.

In 1999 Penguin's Complete Poems book came out, featuring a section called "Poems Uncollected by Parker". Silverstein alleges the section is copied "comma by comma" from his own work, without acknowledgement. Penguin says it owes Silverstein nothing since all he did was compile a collection of works that were already in the public domain. The company concedes that Silverstein's collection was a source, but says its editor arranged the poems in a different order and even removed one that Silverstein included in error. Judgment is hoped for, if not necessarily expected, by Christmas.

Without possession of the facts the IPKat would not wish to rule on this dispute. He recalls however that compilations of even public domain works are capable of attracting copyright in their own right, so long as some individual creativity has gone into the act of compilation - and he's sure that editing a public domain work can also attract fresh copyright. Either that, or a lot of new editions of old music would be free for all (cf the Hyperion dispute, noted by the IPKat here, here and here). Merpel suspects that Penguin, Scribner, Silverstein and their respective lawyers will all make a good deal more money out of these poems than Dorothy Parker ever did.

Feeling enterprising and want to sue someone? If so, the Enterprise Act 2002 (Disclosure of Information for Civil Proceedings etc) Order 2007 (SI 2007 No. 2193) comes into force on 1 October 2007 in the United Kingdom and it might just affect you. The story goes like this. Part 9 of the Enterprise Act controversially restricted the disclosure of certain information, obtained for the purposes of a criminal prosecution, from being admitted in civil proceedings.

Left: Spock returns to the Starship Enterprise, pleased that an apparent inconsistency, if not illogicality, of UK legislation has been resolved

This bar had obvious repercussions for IP litigation, since many species of civilly actionable infringements are also criminal offences. Now a new Section 241A of the Enterprise Act (inserted by section 1281 of the Companies Act 2006) provides that certain specified information may be disclosed for the purposes of, or in connection with,
"proceedings in respect of the rights and obligations of consumers and those relating to or arising out of the infringement or misuse of intellectual property rights".
For these purposes Section 241A permits prescribed information to be disclosed for obtaining legal advice in relation to such prescribed proceedings and otherwise for the purposes of establishing, enforcing or defending legal rights that are or may be the subject of such prescribed proceedings. For these purposes "intellectual property right" includes
"a patent, copyright, and analogous or related right, database right, registered or unregistered design right, registered trade mark, topography right, supplementary protection certificate, plant variety right, protected designation of origin or a protected geographical indication".
The IPKat welcomes the amendment, but deprecates the inelegant and obscure manner in which the new changes are summarised in the Explanatory Note that accompanies the Regulation. He wonders whether anyone who needs an explanation will find it here.

Department for Business, Enterprise and Regulatory Reform paper in response to consultations, August 2007, here
Penguin in denial; and now for a little Enterprise Penguin in denial; and now for a little Enterprise Reviewed by Jeremy on Monday, September 24, 2007 Rating: 5

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