Tumber v Independent Television News Ltd (ITN) & Anor

For summary judgment, the court may determine a short point of law or construction where it has the evidence needed for a proper decision. An implied copyright licence may arise from custom and practice, but whether it does so depends on the evidence and cannot necessarily be decided summarily. In fair dealing cases, commercial competition with the copyright owner’s exploitation is the most important consideration, alongside whether the work was already public and the amount and importance taken. The Jameel jurisdiction should not be used where damages cannot yet be quantified with sufficient certainty. Allocation to the IPEC small claims track may be refused where the imbalance in resources creates a real risk of unrecoverable costs arising from disproportionate complexity.

The claimant sued Independent Television News Ltd and ITV plc for copyright infringement after his poem was reproduced on an ITV website for just over 24 hours. The defendants relied on implied licence, estoppel, fair dealing under section 30(2) of the Copyright, Designs and Patents Act 1988, lack of authorisation for copying by third-party websites, and abuse of process.

At a case management conference, the court considered applications to strike out parts of the defence and the claim, summary judgment on implied licence, allocation to the small claims track, and disclosure relevant to a possible Part 36 offer.

1. Implied licence. The pleaded telephone exchanges disclosed no arguable basis for an implied licence. The claimant’s evidence was unanswered, and any significant words relied upon should have been pleaded. That limb of the defence was therefore struck out. The alleged licence arising from custom and practice was not struck out. Although the court had serious doubts about it, the authorities and evidence did not justify ruling it out before trial.
2. Estoppel and fair dealing. The estoppel defence stood or fell with implied licence and was allowed to go no further under the cost-benefit test. The fair dealing defence was retained. Applying the approach approved in England and Wales Cricket Board Ltd v Tixdaq Ltd, the court treated commercial competition as the most important factor, with prior publication and the amount and importance taken also relevant. Possible evidence about the poem’s sales after publication could affect that assessment.
3. Track allocation and costs. Despite doubts that damages would exceed £10,000, the case was not allocated to the small claims track. The defendants’ waiver of the cap did not remove the concern that their greater resources could make the litigation unnecessarily complex and generate costs unrecoverable by the claimant. The court noted that a suitable Part 36 offer could protect the defendants’ position.
4. Strike-out of the claim. The claim was not struck out under the Jameel principles because the case was not sufficiently similar to Jameel (Yousef) v Dow Jones & Co Inc or Lilley v DMG Events Ltd, and damages could not yet be quantified with sufficient certainty. The claimant’s publicity and conduct of the litigation were unwise but did not reach the impropriety considered in Broxton v McLelland No 1.