The IPEC has refused to strike out ITN's defence to a claim of infringement of copyright in the longest love poem ever written that it had an implied licence to publish the poem after it was sent by the claimant to an ITN journalist, who had approached him with a view to writing an article about it. HHJ Hacon said he had serious doubts whether an implied licence could be inferred, as ITN argued, by custom and practice in this case, but did not believe himself to be in a position to rule it out altogether.
The judge also refused to strike out a fair dealing defence despite the fact that the entire poem was published with the article, finding it at least arguable that, based on the possibility that the claimant's sales of the poem may have increased as a result of the publicity, ITN could not be said to be competing with the claimant.
ITN's own application to strike out the claim for abuse of process, based on Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, was also rejected. While the judge had doubts about the quantum of damages to which the claimant would be entitled if he were to succeed at trial, the court was not in the position to quantify damages with any certainty and therefore to reach a conclusion that the matter be struck out on Jameel principles (Rajinder Tumber v Independent Television News Ltd [2017] EWHC 3093 (IPEC) (20 November 2017) – to read the full judgment click here).
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