Tuesday 27 November 2012

Communication without implication: when should a doctor sue?

Earlier this month, in Wilkinson v London Strategic Health Authority [2012] EWPCC 48, a decision of the Patents County Court for England and Wales, Judge Birss QC had to rule on a dispute over the ownership of copyright in training materials which were used for teaching communication skills to doctors, nurses and other staff in the field of cancer.

London, made easy ...
Dr Susan Wilkinson developed an approach to communication skills training --"the Wilkinson Variant" (WV) [note: there are three such approaches, the other two being the Maguire Variant and the Fallowfield Variant. The Wilkinson Variant is aimed at nurses, Fallowfield at doctors and Maguire at any generic healthcare professional]. Subsequently, in the summer of August 2007, Dr W signed an agreement with the London Strategic Health Authority (SHA) for a project to produce a 'connected programme', this being a unified national approach to advanced communication skills training for doctors, nurses and other staff ('ACST'). By Clause 6.6 of this agreement:
"All intellectual property rights associated with any intellectual property arising from the performance of the Services and the documents and other work prepared by the Consultant pursuant to this Agreement shall belong to SHA". 
Eventually a bundle of materials was produced which included some text that had been derived from the WV. According to Dr W, she and no-one else owned the copyright in various training materials relating to her original works: the SHA had infringed her copyright by using that material. Two SHA documents were in issue: the 'ACST Facilitators Manual' and a 'learner pack' (the SHA works).

The issues for consideration were as follows: (i) did Dr W own the copyright in her WV materials? (ii) To what extent were the SHA works derived from them? (iii) Could the 2007 agreement be interpreted as assigning Dr W's existing copyright in her already-created works to SHA? (iv) did the SHA have the benefit of an implied licence to use those works?  Dr W maintained that any licence granted to the SHA in respect of the project was limited to the purposes of the project which had been made known to her in advance, on the basis that the SHA could exploit the works within the National Health Service -- but no wider than that.

Judge Birss QC held that the copyright did indeed belong to Dr W, but that the SHA had not infringed it.  In his view:

* the copyright in the documentation of the WV belonged to Dr W at the time when the 2007 agreement was signed -- and the SHA works in question included significant extracts from those works with the consequence that the reproduction of those works would infringe her copyright  -- unless there had been a transfer of that copyright or a licence.

* On the facts, it was clear that Clause 6.6 did not operate as an assignment of any of Dr W's pre-existing copyright in the WV to the SHA. The effect of that clause was prospective, not retrospective.

* Nor could an assignment of her copyright be implied.  The implication of such a contractual term should only be made where it was necessary, and even then only to the extent that it was necessary to give effect to the intention of the parties to the contract, but not more than that, and a minimalist approach was therefore called for.

* In the circumstances, the SHA did have the benefit of an implied licence to use the WV in relation to work done under the 2007 agreement. This was because Clause 6.6 showed that it was the intention of both of the parties that the benefit of the copyright in work created under that agreement would be enjoyed by the SHA --  and no limit was placed on the SHA's enjoyment of that copyright.

* There was no clause which provided that Dr W was to have any right of control or veto what the SHA did with the project.

Last Friday there was a sequel to this, in Wilkinson v London Strategic Health Authority [2012] EWPCC 55. Both parties came before the court to argue the question of costs because, unsurprisingly, they could not agree who had won.  Dr W thought she was the victor because the court had acknowledged her ownership of the copyright, while the SHA felt they had won, having been exonerated in the copyright infringement action. The matter was complicated by the fact that the litigation commenced before the High Court and that it could have been concluded more swiftly if Dr W had cooperated with a without-prejudice attempt by the SHA's lawyers to clarify some of the issues in question in the hope of keeping costs down.

In the end, Judge Birss QC did not actually say "a plague on both your houses", but an element of that school of thought was reflected in the judge's conclusion when he said:
"... the order I will make is that the defendant must pay 27.5% of the claimant's costs of these proceedings and the claimant must pay 35% of the defendant's costs ... ".
This blogger does rather feel that this case could have been avoided entirely, or its effects greatly minimised, if the parties had directed their communication skills more appropriately in the direction of each other at an earlier stage.

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