Tuesday 8 February 2011

A fable of copyright communication

While the spotlight has been on possible problems with the UK’s IP framework, the High Court has been mopping up some copyright problems that have nothing to do with the legal framework, but everything to do with human beings: in particular, how they manage and communicate about their intellectual property.

Looney v Trafigura [2011] EWHC 125 (Ch) isn’t a copyright law case as such (nor does it feature Bugs Bunny or superinjunctions) – the issue was whether Trafigura was entitled to terminate its contract with Kieran Looney. Where copyright comes in is that it was an important part of why Trafigura wanted to part company with Looney.

Looney was providing Trafigura with a performance management programme, charging out his time at £3 million a year. Participants in his programme signed a ‘Materials Agreement’ saying that his materials were only to be used as expressly licensed in writing.

But Trafigura didn’t seem to be handling the materials as Looney wished.

Trafigura’s CFO made smaller copies of the materials, which would be easier to carry when travelling: Looney asked him to hand them over. And when the CEO told employees at a training session to email 90-day plans to him, Looney objected and the CEO had to tell employees to destroy documents. Subsequently Looney spent quite a lot of his rather expensive time drilling the managers and employees on his IP rights and how his materials should be disseminated.

In the judge’s view, the Materials Agreement was not ‘sufficient to alert the recipients to, say, the existence of a bar on creating online templates.’ If a judge has trouble understanding your contract’s small print, then it must be unrealistic to expect others to have taken it on board and be putting it into practice.

When the COO asked Looney to summarize what they weren’t allowed to do with the materials, Looney ‘rather unhelpfully’ (in the judge’s view) instructed the COO to refer his question to his in-house lawyer. If Looney couldn’t easily express how things stood with his IP, how could he expect others to get his drift?

The story illustrates that in the digital age, those who care about their intellectual property either need to relax a little or they should learn how to communicate their rights and permissions EXTREMELY CLEARLY (and nicely) … so that even judges know what they want.

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