In particular, Arnold J considered that guidance from the ECJ was required as to what extent the following features were protectable by copyright:

1. Programming languages.
2. Interfaces.
3. Functionality.

Arnold J concluded that the resolution of the case depended on a number of important issues surrounding the interpretation of Articles 1(2) and 5(3) of the Software Directive and Article 2(a) of the Information Society Directive, and that he should refer such issues to the ECJ.

COMMENT:  Despite making a reference to this ECJ, Arnold J expressed his own view in his judgment: i.e. that it should not be an infringement of the copyright that subsists in a computer program to replicate its functions without copying its source code or design.  This view is consistent with the previous decision of Navitaire Inc v Easyjet Airline Company and another [2004] EWHC 1725 (Ch). The outcome of this case should be carefully scrutinised by those software companies who wish to replicate certain aspects of software products already on the market.

In the first instance proceedings, the Honourable Mr Justice Blackburne made the following three declarations:

1. Mr Fisher was the co-author of the song.
2. Mr Fisher was a joint owner of the musical copyright in the song, his share being assessed at 40%.
3. The defendants’ licence to exploit the Work was revoked on 31 May 2005, the date when the action was started, 38 years after the initial release of the record.

This was, in effect, a strong victory for the claimant, despite the fact that the song dated back to the 1960s.

The case was appealed to the Court of Appeal, who upheld the decision that Fisher was a joint owner of the copyright in the song.  However, the Court of Appeal upheld the defendants’ appeal that given Fisher’s “excessive and inexcusable delay” before bringing a claim, i.e. from the 1960’s to 2005, it was unjust that Fisher should succeed in his claims to a joint interest in the song (i.e. whether he was entitled to the commercial spoils deriving from the song) or to have the implied licence to the respondents revoked.

The case was further appealed to the House of Lords (the highest court in the land for such cases of copyright infringement), which held that the Court of Appeal was wrong to hold that Fisher could on the one hand own the copyright in question, but then be barred from any chance of obtaining an injunction for copyright infringement.  The House of Lords noted that there was nothing under English law which set a time deadline for laying claim to ownership of copyright.  (The position in Scotland is apparently potentially different.) The House of Lords also noted the crucial distinction which exists between “the exercise of rights (i.e. exploiting copyright) and the obtaining of discretionary remedies (i.e. getting an injunction)”.

Accordingly, Fisher is now at liberty to enjoy his share deriving from the copyrights in the song and also has the theoretical right to obtain an injunction.  However, this theoretical right to an injunction would have to be determined by the trial judge in a claim for copyright infringement and be decided on the merits.  Although it was Fisher’s position that the proceedings were not about getting an injunction, such a claim was part of the originating copyright infringement proceedings.  In any event, it may well be that any further attempt to enforce an injunction against the defendants might be refused on equitable grounds relating to delay etc, but the point is that Fisher is not prevented from trying.

Hopefully for all parties, further proceedings will not be needed after this judgment from the House of Lords.

COMMENT: This case is bad news for the music industry.  One of main issues was on the subject of delay and related legal concepts, such as laches and estoppel.  The court rejected a defence on these grounds in respect of a claim to ownership of copyright.  This claim might therefore result in other aged musicians thinking about the possibility of launching their own copyright claims on the basis that they have not got their fair share of the historical spoils from a song.

Each case will have to be assessed on its merits.  But the case of Fisher v Brooker does offer considerable encouragement for potential claimants for musical copyright infringement (and for their lawyers).  Music companies are bound to be less impressed and may be talking to their insurers about this increased risk of a claim in respect of poorly drafted historic music agreements.