Wilkinson v London Strategic Health Authority ([2012] EWPCC 48) yet again (Harmony featured a couple of weeks ago) shows the (expensive) traps in agreements relating to copyright.
Wilkinson had written some excellent material for teaching communication skills to nurses. Predecessors of the London Strategic Health Authority (LSHA) wanted to use this, amongst other material in a “unified” training product. The agreement said that LSHA would own all the work which was carried out for them – which used the pre-existing material known as the “Wilkinson Variant”.
LSHA wanted to use this (the developed material AND the pre-existing material) in a programme of licensing abroad (although as an English NHS body their primary interest was in the England). Wilkinson saw red, and sued for infringement, saying, not unreasonably, that the rights in the pre-existing material belonged to her. The LSHA countered by saying that the rights belonged to them.
In a Pyrhhic victory for both parties His Honour Judge Birss QC decided that the agreement had not assigned rights in the pre-existing material to the LSHA. However, it had assigned rights in the developed work to the LSHA. Therefore, in order to give commercial efficacy to the agreement, a (non-exclusive) licence would be implied for the LSHA in respect of the earlier material. The kicker however was the scope of this licence: Wilkinson argued that it should be restricted to use within the NHS; the judge held that it should be unrestricted.
Effectively LSHA had all that they wanted – and only a bill for about 1/3 of the costs. The lesson is that a lot of money can be spent on resolving disputes over loose wording in copyright matters. The razor needs to be sharper next time. Practitioners will see that this licence was greater in scope than many of them would have anticipated – the next agreement (if it relies on implied licences, which of course it would be better if it did not) needs to be more tightly worded. The case also illustrates some of the problems for resolving disputes where the issue is costs, especially if costs depend on a conditinal fee agreement.
