1. The
Plaintiff is the Trustee of the Estate of James Joyce. The Defendant, is a
constituent college of the National University of Ireland and trades as Cork
University Press. The Defendant is minded to put into the market an anthology
entitled "Irish Writing in the Twentieth Century: A Reader" (hereinafter
referred to as "the Anthology"). Edited by David Pierce, Department of
English, University College of Ripon and York, St. John. The Defendant which
is the publisher has a publishing officer, one Sara Wilbourne. The Cork
University Press is a non profit making publishing house, publishing non
academic texts with charitable status as part of the National University of
Ireland, Cork. It was intended that the Anthology should contain extracts
from a number of works by James Joyce.
2. The
Estate of James Joyce is the owner of the copyright in the works of James
Joyce, and in particular, the work known as "Ulysses" by James Joyce, and all
drafts of Ulysses. The chain
of
title which establishes the Plaintiff’s entitlement to sue to protect the
works, and in particular the copyright in the works of James Joyce is set out
in paragraphs (10) and (11)
of
the Plaintiffs affidavit sworn on 9th September 2000. The sole beneficiary of
the Estate of James Joyce is his grandson Stephen James Joyce. The trustees
and beneficiary
perceive
the role of the Estate to be the guardian of the literary heritage
James
Joyce entrusted to it. The Estate is sought to preserve and protect the
spirit, letter and integrity of his works. The Plaintiff considers he has the
responsibility of the literary works of James Joyce vested in the Estate.
3. By
letter dated 11th April 2000 Sara Wilbourne wrote to Stephen James Joyce
requesting permission for the inclusion of a number of pieces from James
Joyce's works in the Anthology then proposed. The letter indicates the
editions which the Defendant then proposed using, and that she would be happy
to send Mr. Joyce proofs, if permission was granted. Specifically the letter
states:-
4. The
reasonable inference to be drawn from this letter is that the consent of Mr.
Stephen James Joyce was required prior to publication and that the copy
right
was in the Estate. Mr. Joyce replied by letter dated 22nd April 2000
indicating that permission would be forthcoming on certain conditions and a
licence fee of £7,000 Sterling, in respect of which he stated:-
5. A
further letter from Mr. Joyce dated 12th May was largely to the same effect,
but expressly stipulating that, as regards Ulysses, the version of the proposed
1922 original edition to by used. The letter concludes by stating that:-
6. The
response to these letters came from Mr. Pierce by letter dated 16th June 2000
enquiring if the fee could be reduced otherwise the number of extracts might
have to be cut. There was an unequivocal refusal by Mr. Joyce in a letter of
20th June 2000. The Defendant's response is a faxed letter of 22nd June 2000
in which Miss Wilbourne states that
"the
fees you have quoted are extraordinarily high and we will not pay them."
A counter offer was proposed and the letter concludes:-
8. Mr.
Joyce followed this up by a letter of the 27th June indicating that the
Estate's fee had now gone up to £7500 sterling in any event because of the
actions of third parties in engaging in unauthorised
"exploitation
of my grandfather and his image".
Mr. Joyce also wrote a letter dated 10th July 2000 reiterating his refusal of
permission and specifically drew the attention of the Defendant to the fact
that all of James Joyce's work is covered by copyright throughout the European
Union until 2011. Mr. Joyce's letter to this effect is addressed to both Miss
Wilbourne and Mr. Pierce.
9. The
Defendant it appears then considered that their aspirations might find
realisation by pursuing another route. One Danis Rose a Joycean Scholar, had
edited some work of James Joyce and in particular Ulysses, which was published
by McMillan Publishing Limited (hereinafter referred to as McMillan) under the
Picador imprint, this book is entitled "James Joyce Ulysses A Reader's Edition"
edited by Danis Rose. It was published in 1997. It was and is for some two
years or more past or thereabouts freely available in bookstores throughout
Ireland. Lilliput Press Limited in Ireland published a text identical to that
of McMillan in or about the year 1997. Neither the publication of McMillan or
Lilliput Press Limited were proceeded against before publication and Lilliput
Press Limited not at all. The Plaintiff says that in the case of the McMillan
publication, the book was for sale to the public before they became aware of
the publication. Notwithstanding the fact that proceedings concerning both
breach of copyright and passing off the works of James Joyce have been taken by
the Plaintiff against both McMillan and Danis Rose in England, Danis Rose has
given his consent to the Defendant for the use of his edition of Ulysses; and
when asked, McMillan effectively informed the Defendant of the dispute between
the Joyce Estate and Danis Rose and McMillan but indicated it would not object
to the Defendant's use of the text it had published as expressly edited by
Danis Rose. The proceedings in England are not settled but an offer to settle
on terms has been disclosed; those proceedings are pending and await hearing.
10. On
or about 24th August Mr. Joyce learned as a result of an enquiry by him of
David Pierce that he ( Mr. Pierce) had just completed editing the Anthology.
On the day following the Plaintiffs Solicitors wrote seeking confirmation that
no extracts from the works of James Joyce had been included in the proposed
Anthology and that no such exploitation of the works of James Joyce would be
made without first obtaining the permission of the Estate. Because the
Plaintiff believed that the Anthology was with the printers an urgent response
was sought by the Plaintiff’s Solicitors.
11. The
response of the Defendant, through its Solicitors was that certain writings
were out of copyright, and that copyright was only revived for those works
which were in copyright in a European member state as of 1st July 1995, and
that certain Joyce works were not the subject to copyright on that date. The
letter also stated that "
only
excerpts which were not the subject of copyright or from the Readers Edition
will be included in the Anthology
."
As no unequivocal assurance, such as was sought by the Plaintiffs and his
Solicitors letters of 6th and 8th September 2000 was forthcoming, and did not
elicit the undertakings sought, proceedings issued on 11th September 2000 and
an interim injunction was sought and obtained on that date restraining the
Defendant its servants or agents from:
12. The
extracts in the Anthology of the work of James Joyce are confined
to
extracts from Ulysses and is a discrete section from p 323 to p 346 and there
is one reference in the index at p 1344, there may or may not be other
references or cross references in the Anthology, which have not been brought to
my attention and which time did not permit me to check for myself. It is
clearly stated in the Anthology that the extracts are from the Danis Rose
edition of Ulysses by James Joyce, both in the text and index. Each excerpt is
preceded by a short note of introduction prepared, it would seem, by Mr. David
Pierce.
13. The
Defendants defence in substance is that it acquired the right to publish
certain exerpts from the Danis Rose edition of Ulysses from Danis Rose via his
licensee. The Defendant pleads and relies upon Regulation 14(2) of the
European Communities (Term of Protection of Copyright) Regulations, 1995
(hereinafter
referred to the as the Regulations) and submits that it is not liable to the
Plaintiff, which it regards as "the alleged owner of the revived copyright in
Ulysses" that it has a complete and
bona
fide
defence to the copyright claim in this action.
14. The
Defendant also contends that in any event it is entitled under statute to
publish portions of the text of Ulysses insofar as they do not constitute a
substantial part of the work. This is a matter of fact and degree that can
only be established a full hearing of the action. The Defendant further
contends that it is entitled to reproduce portion of the text of Ulysses for
the purposes of private study and research, or criticism and review, if the
exerpts are accompanied by an acknowledgement of James Joyce's authorship of
the work Ulysses.
15. The
foregoing is a very brief résumé of the facts, assertions,
opinions and contentions contained in no less than some thirteen Affidavits
filed in this suit to date. The omission to record all points of view and the
sworn statements that are the Affidavits is not to fail to recognise that there
are several matters of fact and points of law that call for resolution upon a
full hearing of the action.
16. It
is very properly conceded by Mr. Gallagher for the Defendant that there is a
serious issue to be tried; but that an injunction ought not be granted for a
number of reasons:-
17. The
Plaintiffs contentions were put very firmly and concisely by Mr. Donal
O'Donnell as follows:-
19. The
work Ulysses was first published in 1922. James Joyce died on the 13th of
January
1941.
Copyright in the text of the 1922 edition of Ulysses and all other editions
and other works published before James Joyce died expired on 1st January 1992,
i.e. 50 years after the end of the year in which he died (S8(4)
Copyright
Act 1963). With effect from 1st July 1995 all the copyrights which expired
were revived by virtue of the European Communities (were revived by virtue of
the Regulations which extended copyright protection to the life of the author
plus 70 years.
20. Article
14 of the Regulations provides that any person who before the 29th October 1993
undertook the exploitation of the literary work or made preparations of
a
substantial
nature
to
exploit such a work at a time when such work was not protected (
shall
not be liable
)
to the owner of the copyright as revived.
23. The
principles upon which injunctive relief can be granted were not disputed or
that there existed a fair question to be tried. Both parties relied on and
quoted from the Judgment of Laffoy J. in
Symonds
Cider & English Wine Co. Ltd. -v- Showerings (Ireland) Ltd.
[1997] 1ILRN 481.
24. It
seems to me that the governing principle is to first consider if the Plaintiff
were to succeed in his claim for a permanent injunction at the trial whether an
award of damages, for the loss he would have sustained before the trial as a
result of the continuing acts of the Defendant, would be adequate compensation.
25. The
nature of copyright is such that while the owner may voluntarily permit licence
of consent to the use in whole or part of a protected work (for a fee or
otherwise) it is a right that can not be wrested from the owner by a person
even tendering the fee in full. The terms and conditions, if not agreed upon,
cannot be imposed by the applicant proceeding in the face of objection and
seeking to publish in whole or part a protected work in the hope or knowledge
that it can pay a sum of money. The Courts cannot by failing to recognise and
uphold the right condemn - most particularly at interlocutory stage when so
many facts are in dispute, and points of law require determination - the owner
of the right to be content until the hearing of the action to permit the breach
of a right in respect of which there is a statutory presumption.
26. For
the Defendant it was submitted that if an interlocutory injunction is granted
it will most seriously frustrate and damage the enterprise undertaken. In my
judgment the granting of an interlocutory injunction could not determine the
final outcome of the whole proceedings. It may very well cause loss and damage
to the Defendant. Both parties expressed to me their willingness and ability
to meet a claim in damages by their respective undertakings.
27. The
Defendant queried the nature and extent of the loss of the Plaintiff. This is
stated in the original grounding Affidavit of the Plaintiff thus:-
28. In
my opinion this alleged loss is not quantifiable or capable of being
compensated by an award of damages. In coming to this view I am not unmindful
of the reputation of the Defendant or its primary educational role. The fact
that the book is intended not to make a loss and be profitable does not make it
primary or sole purpose commercial. However in all the circumstances of the
case the Plaintiff is entitled to succeed and have the relief sought by way of
injunction and I order accordingly.