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The need for clarity when transferring copyright

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13/01/2016


The Court of Appeal has delivered judgment in BSI Enterprises Ltd and another v Blue Mountain Music Ltd [1] over the ownership of copyright in some Bob Marley songs, including No Woman No Cry.

The facts of the case were quite complicated as Marley had deliberately misattributed songs to his associates, meaning that the Court had to trawl through a number of assignments and licences to ascertain who owned the copyright. However, the central question was whether an agreement made in 1992 between Cayman Music Inc, a company with whom Marley had entered into a publishing agreement in the 1970s, and Island Logic Ltd, his own record label, was effective to transfer copyright in the songs from Cayman to Island. The songs were not referred to in the 1992 agreement and the issue was whether the songs were covered by the agreement.

The High Court held that the copyright in the songs had been assigned to Island and nothing should be inferred from their not having been named in the 1992 agreement. The Court of Appeal agreed with this interpretation, applying the usual rules of contractual interpretation, namely to “ascertain the meaning which the language would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. Having regard to the definitions used in the 1992 agreement, it was clear to the Court of Appeal, as it was to the High Court, that the songs were covered by the agreement.

Although concerned with copyright, this case is really about how to draft a contract and the judicial approach to contractual interpretation. If the songs were intended to be excluded, this should have been expressly stated. Conversely, the no doubt costly litigation that arose could have been avoided by clear drafting that the transfer was intended to apply to all songs.

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[1] [2015] EWCA Civ 1151

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